Endangered and Threatened Wildlife and Plants; Determination of Critical Habitat for the Oahu Elepaio (Chasiempis sandwichensis ibidis)

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: December 10, 2001 (Volume 66, Number 237)]
[Rules and Regulations]
[Page 63751-63782]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10de01-11]

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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AG99

Endangered and Threatened Wildlife and Plants; Determination of
Critical Habitat for the Oahu Elepaio (Chasiempis sandwichensis ibidis)

AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat for the Oahu elepaio pursuant to the Endangered
Species Act of 1973, as amended (Act). The Oahu elepaio is a forest
bird found only on the island of Oahu and is listed as endangered under
the Act. The critical habitat consists of five units whose boundaries
encompass a total area of approximately 26,661 hectares (ha) (65,879
acres (ac)) in the Koolau and Waianae mountains on the island of Oahu,
Hawaii. Critical habitat identifies specific areas that are essential
to the conservation of a listed species and that may require special
management considerations or protection. As required by section 4 of
the Act, we considered economic and other relevant impacts prior to
making a final decision on what areas to designate as critical habitat.

DATES: This rule is effective January 9, 2002.

FOR FURTHER INFORMATION CONTACT: Marilet A. Zablan, Vertebrate
Conservation Coordinator, or Eric VanderWerf, Biologist, Pacific
Islands Fish and Wildlife Office, U.S. Fish and Wildlife Service, 300
Ala Moana Boulevard, Room 3-122, Box 50088, Honolulu, Hawaii 96850
(telephone: 808/541-3441; facsimile: 808/541-3470).

SUPPLEMENTARY INFORMATION:

Background

The Oahu elepaio (Chasiempis sandwichensis ibidis) is a small
forest-dwelling bird approximately 12.5 grams (0.43 ounces) in weight
and 15 centimeters (cm) (6 inches (in)) in length, and is a member of
the monarch flycatcher family Monarchidae (VanderWerf 1998). It is dark
brown above and white below, with light brown streaks on the breast.
The tail is long (6.5 cm, 2.6 in) and often held up at an angle. Adults
have conspicuous white wing bars, a white rump, and white tips on the
tail feathers. The throat is white with black markings in both sexes,
but males tend to have more black on the chin than females. Juveniles
and subadults are reddish above, with a white belly and rusty wing-
bars. The bill is medium-length, straight, and black, with the base of
the lower mandible bluish-gray in adults and yellow in juveniles. The
legs and feet are dark gray and the iris is dark brown (VanderWerf
1998).
Three subspecies of elepaio are recognized, each found only on a
single island: the Oahu elepaio; the Hawaii elepaio (Chasiempis s.
sandwichensis); and the Kauai elepaio (C. s. sclateri). The forms on
different islands are similar in ecology and behavior, but differ
somewhat in coloration and vocalizations (Conant 1977, van Riper 1995,
VanderWerf 1998). The taxonomy used in this rule follows Pratt et al.
(1987) and Pyle (1997), in which all forms are regarded as subspecies,
but the form on each island was originally described as a separate
species. The Oahu form was known as C. s. gayi (Wilson 1891) until
Olson (1989) pointed out that the epithet ibidis (Stejneger 1887) has
priority. The elepaio comprises a monotypic genus that is found only in
the Hawaiian Islands (VanderWerf 1998). Its closest relatives are other
monarch flycatchers from the Pacific region (Pratt et al. 1987, Sibley
and Ahlquist 1985).
The Oahu elepaio occurs in a variety of forest types, but is most
common in riparian vegetation along streambeds and in mesic forest with
a tall canopy and a well-developed understory (Shallenberger and Vaughn
1978, VanderWerf et al. 1997). Population density is roughly 50 percent
lower in shorter dry forest on ridges (VanderWerf et al. 1997). Elepaio
currently are not found in very wet, stunted forest on windswept
summits or in very dry shrub land, but these areas may be used by
individuals dispersing among subpopulations. Forest structure appears
to be more important to elepaio than plant species composition
(VanderWerf et al. 1997), and unlike many Hawaiian forest birds,
elepaio have adapted relatively well to disturbed forest composed of
introduced plants (Conant 1977, VanderWerf et al. 1997, VanderWerf
1998). Fifty-five percent of the current range is dominated by
introduced plants and 45 percent is dominated by native plants
(VanderWerf et al. 2001). This observation does not imply that elepaio
prefer introduced plant species, but probably reflects a preference by
elepaio for riparian vegetation in valleys and the high degree of
habitat disturbance and abundance of introduced plants in riparian
areas (VanderWerf et al. 1997). Of the 45 percent dominated by native
plants, 23 percent is categorized as wet forest, 17 percent as mesic
forest, and 5 percent as dry forest, shrub land, and cliffs (Hawaii
Heritage Program 1991).
Plant species composition in elepaio habitat varies considerably
depending on location and elevation, but some of the most common native
plants in areas where elepaio occur are ohia (Metrosideros polymorpha),
papala kepau (Pisonia umbellifera), lama (Diospyros sandwicensis),
mamaki (Pipturus albidus), kaulu (Sapindus oahuensis), hame (Antidesma
platyphyllum), and alaa (Pouteria sandwicensis), and some of the most
common introduced plants are guava (Psidium guajava), strawberry guava
(P. cattleianum), kukui (Aleurites moluccana), mango (Mangifer indica),
Christmasberry (Schinus terebinthifolius), and ti (Cordyline
terminalis) (VanderWerf et al. 1997, VanderWerf 1998).
The current population of Oahu elepaio is approximately 1,982 birds
distributed in six core subpopulations and several smaller
subpopulations (Table 1, Figure 1; VanderWerf et al. 2001).

Table 1.--Estimated Size and Area of Oahu Elepaio Subpopulations
[Data from VanderWerf et al. (2001). Letters before each subpopulation
correspond to those on Figure 1]
------------------------------------------------------------------------
Total Breeding
Subpopulation population population Area (ha)
size size
------------------------------------------------------------------------
Waianae Mountains:
A. Southern Waianae 458 418 1,170
(Honouliuli Preserve,
Lualualei Naval Magazine)...
B. Schofield Barracks West 340 310 538
Range.......................
C. Makaha, Waianae Kai 123 112 459
Valleys.....................

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D. Pahole, Kahanahaiki....... 18 4 256
E. Schofield Barracks South 6 0 20
Range.......................
F. Makua Valley.............. 7 2 49
G. Kaala Natural Area Reserve 3 0 21
H. Makaleha Gulch............ 2 0 7
I. Kuaokala.................. 3 2 14
J. Kaluakauila Gulch......... 1 0 6
Koolau Mountains:
K. Southern Koolau (Pia, 475 432 1,063
Wailupe, Kapakahi, Kuliouou,
Waialae Nui)................
L. Waikane, Kahana Valleys... 265 242 523
M. Central Koolau (Moanalua, 226 206 1,396
North and South Halawa,
Aiea, Kalauao)..............
N. Palolo Valley............. 46 42 78
O. Waihee Valley............. 5 4 32
P. Manoa..................... 2 0 19
Q. Hauula.................... 1 0 4
R. Waianu Valley............. 1 0 8
--------------------------------------
Total...................... 1,982 1,774 5,663
------------------------------------------------------------------------

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The only previous population estimate (200-500 birds; Ellis et al.
1992) was not accurate because little information was available when
the estimate was made. The number of birds is divided about evenly
between the Waianae Mountains in the west and the Koolau Mountains in
the east, with three core subpopulations in each mountain range. At
least 10 tiny remnant subpopulations consisting mostly or entirely of
males remain in both the Waianae and Koolau mountains (Table 1). These
remnant subpopulations were much larger or continuous with other
subpopulations in the past, but because of their very small size,
skewed sex ratio, and geographic isolation, these relicts likely will
disappear in a few years as the last adults die.
The breeding population, about 1,774 birds, is less than the total
population because of a male-biased sex ratio; only 84 percent of
territorial males have mates in large populations (VanderWerf et al.
2001), and many small, declining populations contain mostly males
(Table 1). The genetically effective population size, a measure that
takes into account genetic population structure and variation in number
of individuals over time, is probably even smaller than the breeding
population because of the geographically fragmented distribution (Grant
and Grant 1992). Offspring dispersal distances in elepaio are usually
less than one kilometer (km) (0.62 mile (mi)) and adults have high site
fidelity (VanderWerf 1998), but most elepaio populations on Oahu are
separated by many kilometers of unsuitable urban or agricultural
habitat. There may be some exchange among subpopulations within each
mountain range, but dispersal across the extensive pineapple fields
that separate the Waianae and Koolau mountains is unlikely. While the
current distribution superficially appears to constitute a
metapopulation, it is uncertain if dispersal occurs among
subpopulations.
Before humans arrived, forest covered about 127,000 ha (313,690 ac)
on Oahu (Figure 2; Hawaii Heritage Program 1991), and it is likely that
elepaio once inhabited much of that area (VanderWerf et al. 2001).
Reports by early naturalists indicate that elepaio were once widespread
and abundant on Oahu. Bryan (1905) called the Oahu elepaio ``the most
abundant Hawaiian species on the mountainside all the way from the sea
to well up into the higher elevations.'' Perkins (1903) remarked on its
``universal distribution * * * from the lowest bounds to the uppermost
edge of continuous forest.'' Seale (1900) stated the elepaio was ``the
commonest native land bird to be found on the island,'' while
MacCaughey (1919) described it as ``the most abundant representative of
the native woodland avifauna'' and ``abundant in all parts of its
range.'' The historical range of the Oahu elepaio apparently included
most forested parts of the island, and it was formerly abundant.
Despite its adaptability, the Oahu elepaio has seriously declined
since the arrival of humans, and it has disappeared from many areas
where it was formerly common (Shallenberger 1977, Shallenberger and
Vaughn 1978, Williams 1987, VanderWerf et al. 1997). The aggregate
geographic area of all current subpopulations is approximately 5,660 ha
(13,980 ac) (see Table 1) (VanderWerf et al. 2001). The Oahu elepaio
thus currently occupies only about 4 percent of its original
prehistoric range, and its range has declined by roughly 96 percent
since humans arrived in Hawaii 1,600 years ago (Kirch 1982). In 1975,
elepaio inhabited approximately 20,900 ha (51,623 ac) on Oahu, almost
four times the area of the current range (Figure 2; VanderWerf et al.
2001). The range of the Oahu elepaio has thus declined by roughly 75
percent in the last 25 years. Much of the historical decline of the
Oahu elepaio can be attributed to habitat loss, especially at low
elevations. Fifty-six percent of the original prehistoric range has
been developed for urban or agricultural use, and practically no
elepaio remain in developed areas (VanderWerf et al. 2001).
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However, many areas of Oahu that recently supported elepaio and
still contain suitable forest habitat are currently unoccupied,
demonstrating that habitat loss is not the only threat. Recent declines
in Oahu elepaio populations are due to a combination of low adult
survival and low reproductive success. Both annual adult survival and
reproductive success are lower on Oahu (0.76, 0.33, respectively) than
in a large, stable population of another subspecies of elepaio at
Hakalau Forest National Wildlife Refuge on Hawaii Island (0.85, 0.62;
VanderWerf 1998). The two main causes of low survival and low
reproduction on Oahu are nest predation by alien black rats (Rattus
rattus) and alien diseases, particularly avian pox (Poxvirus avium) and
avian malaria (Plasmodium relictum), which are carried by the alien
southern house mosquito (Culex quinquefasciatus). Annual survival of
birds with active avian pox lesions (60 percent) was lower than annual
survival of healthy birds (80 percent) (E. VanderWerf unpubl. data).
Pairs in which at least one bird had pox lesions produced fewer
fledglings than healthy pair. (E. VanderWerf, unpubl. data). Many birds
with active pox did not even attempt to nest, and infected birds were
sometimes deserted by their mate. Malaria is a serious threat to many
Hawaiian forest birds (Warner 1968, van Riper et al. 1986, Atkinson et
al. 1995), but its effect on elepaio has not been investigated.
Nest predation by black rats causes many nests to fail, and rats
also probably take adult female elepaio on the nest at night. An
experiment in which automatic cameras were wired to artificial elepaio
nests containing quail eggs showed that a black rat was the predator in
all 10 predation events documented (VanderWerf 2001). Control of rats
with snap traps and diphacinone (an anticoagulant rodenticide) bait
stations was effective at improving elepaio reproductive success,
resulting in an 85 percent increase in nest success and a 127 percent
increase in fledglings per pair compared to control areas (VanderWerf
1999).
A comprehensive description of the life history and ecology of the
elepaio is provided by VanderWerf (1998), from which much of the
information below is taken. Elepaio are non-migratory and defend all-
purpose territories year-round. The average territory size on Oahu was
2.0 ha (4.94 ac) in forest composed of introduced plant species (Conant
1977), but territory size likely varies with vegetation structure.
Population density on Oahu was 50 percent lower in short forest on
ridges than in tall riparian forest along streambeds (VanderWerf et al.
1997), and for the related subspecies on Hawaii, territory size was 50
percent larger in more disturbed forest with an open canopy and grass
understory.
Oahu elepaio are socially monogamous, and approximately 63 percent
of pairs remain together each year (E. VanderWerf, unpubl. data). Site
fidelity is high, with 96 percent of males and 67 percent of females
remaining on the same territory from year to year. Annual survival of
healthy adults is high, approximately 85 percent in males and 70
percent in females (E. VanderWerf, unpubl. data). Young birds wander
(or float) while they attempt to acquire a territory and a mate.
The nesting season usually extends from mid February through May,
but active nests have been found from January through July (VanderWerf
1998). Nest site selection is not specialized, and nests have been
found in a variety of plants, including 6 native species and 13
introduced species (E. VanderWerf, unpubl. data). The nest is a finely-
woven, free-standing cup made of rootlets, bark strips, leaf skeletons,
lichen, and spider silk, and is placed in a fork or on top of a branch
(Conant 1977, VanderWerf 1998). Both sexes participate in all aspects
of nesting, but the female plays a larger role in nest building and the
male provides more food for the nestlings. Clutch size is 1 to 3 eggs,
usually 2, and eggs hatch after 18 days. The nestling period is 16
days. Fledglings are fed by their parents for more than a month after
leaving the nest, and may remain in the home territory for up to 9
months, until the start of the next breeding season. Fecundity
(reproductive rate) is low; even if nest predators are removed, the
mean reproductive rate is 0.75 fledglings per pair per year (VanderWerf
1999). Oahu elepaio will re-nest once or twice after failure, but they
rarely attempt to re-nest if the first nest is successful. Other than
introduced predators, storms with heavy rain and strong winds are the
most common cause of nest failure.
The diet and foraging behaviors of elepaio are extremely varied.
The diet consists of a wide range of arthropods, particularly insects
and spiders, and includes introduced species such as fruit flies
(Tephritidae) (VanderWerf 1998). Large prey, such as moths and
caterpillars, are beaten against a branch before being eaten. In a
study on Hawaii Island, VanderWerf (1993, 1994) found that elepaio
foraged at all heights on all available plant species, and that they
caught insects from a variety of substrates, including the ground and
fallen logs (2 percent), trunks (5 percent), branches (24 percent),
twigs (38 percent), foliage (20 percent), and in the air (11 percent).
Elepaio are versatile and agile in pursuit of prey, using a diversity
of foraging behaviors that is among the highest recorded for any bird,
including perch-gleaning (48 percent), several forms of flight-gleaning
(30 percent), hanging (11 percent), aerial flycatching (7 percent), and
active pursuit (4 percent) (VanderWerf 1994).

Previous Federal Action

We were petitioned by Mr. Vaughn Sherwood on March 22, 1994, to
list the Oahu elepaio as an endangered or threatened species with
critical habitat. The November 15, 1994, Animal Candidate Notice of
Review (59 FR 58991) classified the Oahu elepaio (then Chasiempis
sandwichensis gayi) as a category 1 candidate. Category 1 candidates
were those species for which we had sufficient data in our possession
to support a listing proposal. On June 12, 1995 (60 FR 30827), we
published a 90-day petition finding stating that the petition presented
substantial information that listing may be warranted. On February 28,
1996 (61 FR 7596), and September 19, 1997 (62 FR 49398), we published
notices discontinuing candidate category designations, and the Oahu
elepaio was listed as a candidate species. Candidate species are those
for which we have on file sufficient information on biological
vulnerability and threats to support proposals to list as threatened or
endangered. On October 6, 1998 (63 FR 53623), we published the proposed
rule to list the Oahu elepaio as an endangered species. Because C. s.
gayi is a synonym of C. s. ibidis, the proposed rule constituted the
final 12-month finding for the petitioned action. On April 18, 2000 (65
FR 20760), we published the final rule to list the Oahu elepaio as an
endangered species.
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary designate critical habitat at the time
a species is determined to be endangered or threatened. Our regulations
(50 CFR 424.12(a)(1)) also state that designation of critical habitat
is not prudent when one or both of the following situations exist--(1)
the species is threatened by taking or other activity and the
identification of critical habitat can be expected to increase the
degree of threat to the species, or (2) such designation of critical
habitat would not be beneficial to the species. In the proposed listing
rule we indicated that designation of

[[Page 63758]]

critical habitat for the Oahu elepaio was not prudent because we
believed a critical habitat designation would not provide any
additional benefit beyond that provided through listing as endangered.
Based on comments we received on the proposed listing rule and on
recent court rulings which address the prudency standard, in the final
listing rule we determined that a critical habitat designation for the
Oahu elepaio was prudent because such a designation could benefit the
species beyond listing as endangered by extending protection under
section 7 of the Act to currently unoccupied habitat and by providing
informational and educational benefits.
Although we determined in the final listing rule that critical
habitat designation for the Oahu elepaio would be prudent, we also
indicated in the final listing rule that we were not able to develop a
proposed critical habitat designation for the Oahu elepaio at that time
due to budgetary and workload constraints. However, on June 28, 2000,
the United States District Court for the District of Hawaii
established, in the case of Conservation Council for Hawaii v. Babbitt,
CIV. NO. 00-00001 HG-BMK, a timetable to designate critical habitat for
the Oahu elepaio, and ordered that the Service publish the final
critical habitat designation by October 31, 2001. That date was
extended to November 21, 2001. This final rule responds to the court's
order.
On November 9, 2000, we mailed letters to 32 landowners on Oahu
informing them that the Service was in the process of designating
critical habitat for the Oahu elepaio and requesting from them
information on management of lands that currently or recently (within
the past 25 years) supported Oahu elepaio. The letters contained a fact
sheet describing the Oahu elepaio and critical habitat, a map showing
the historic and current range of the Oahu elepaio, and a questionnaire
designed to gather information about land management practices, which
we requested be returned to us by November 27, 2000. We received 11
responses to our landowner mailing with varying types and amounts of
information on current land management activities. Some responses
included detailed management plans, provided new information on
locations where elepaio have been observed recently, and described
management activities such as fencing, hunting, public access, fire
management, methods for controlling invasive weeds and introduced
predators, and collaboration with conservation researchers. In
addition, we met with several landowners and managers, including the
U.S. Army and the Hawaii State Division of Forestry and Wildlife, to
obtain more specific information on management activities and
suitability of certain habitat areas for the elepaio. The information
provided in the responses and during meetings was considered and
incorporated into this final rule.
On June 6, 2001, we published a proposed rule to designate critical
habitat for the Oahu elepaio (66 FR 30372). The proposed critical
habitat consisted of five units whose boundaries encompassed a total
area of approximately 26,661 hectares (ha) (65,879 acres (ac)) in the
Koolau and Waianae mountains on the island of Oahu, Hawaii. The public
comment period was open for 60 days until August 6, 2001. We did not
receive any requests for public hearings during the comment period and
we did not hold any public hearings. On August 6, 2001, we published a
notice announcing the reopening of the public comment period and the
availability of the draft economic analysis for the proposed critical
habitat designation for the Oahu elepaio (66 FR 40960). The comment
period was open for an additional 30 days until September 6, 2001. On
August 28, 2001, we held a public meeting in Honolulu to provide
information and promote discussion about the critical habitat
designation for the Oahu elepaio. The meeting was attended by 11
people, not including Service staff. During this meeting the Service
presented a brief introduction to the biology of the Oahu elepaio, a
summary of previous federal actions regarding the elepaio, information
about critical habitat, and the methods used to identify critical
habitat for the Oahu elepaio. The presentation was followed by a
question and answer session and general discussion, and we made
available information including maps, fact sheets, news releases,
reprints of scientific papers, copies of the proposed rule and draft
economic analysis, and instructions for submitting public comments. On
September 5, 2001, we published a correction to the proposed rule (66
FR 46428). The proposed rule contained the correct maps and legal
descriptions of the proposed critical habitat units, but figure 2 in
the background section of the proposed rule, which showed the proposed
critical habitat units in relation to the current, recent historical,
and presumed prehistoric distribution of the Oahu elepaio, showed the
proposed critical habitat units incorrectly. The correction provided an
accurate version of figure 2 that matched the critical habitat units
depicted in the legal description of the original proposed rule. Page
30377 of the proposed rule was replaced with page 46429 of the
correction.

Critical Habitat

Critical habitat is defined in section 3, paragraph (5)(A) of the
Act as--(i) the specific areas within the geographic area occupied by a
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features (I) essential to the
conservation of the species and (II) that may require special
management considerations or protection; and (ii) specific areas
outside the geographic area occupied by a species at the time it is
listed, upon a determination that such areas are essential for the
conservation of the species. ``Conservation,'' as defined by the Act,
means the use of all methods and procedures that are necessary to bring
an endangered or a threatened species to the point at which listing
under the Act is no longer necessary.
Critical habitat receives protection under section 7 of the Act
through the prohibition against destruction or adverse modification of
critical habitat with regard to actions carried out, funded, or
authorized by a Federal agency. Section 7 also requires conferences on
Federal actions that are likely to result in the destruction or adverse
modification of proposed critical habitat. Destruction or adverse
modification is direct or indirect alteration that appreciably
diminishes the value of critical habitat for the conservation of a
listed species. Such alterations include, but are not limited to,
alterations adversely modifying any of those physical or biological
features that were the basis for determining the habitat to be
critical. Aside from the added protection that may be provided under
section 7, the Act does not provide other forms of regulatory
protection to lands designated as critical habitat. Because
consultation under section 7 of the Act does not apply to activities on
private or other non-Federal lands that do not involve a Federal nexus,
critical habitat designation would not afford any additional regulatory
protections under the Act against such activities.
Critical habitat also provides non-regulatory benefits to the
species by informing the public and private sectors of areas that are
important for species recovery and where conservation actions would be
most effective. Designation of critical habitat can help focus
conservation activities for a listed species by identifying areas that
contain the physical and biological features that

[[Page 63759]]

are essential for conservation of that species, and can alert the
public as well as land-managing agencies to the importance of those
areas. Critical habitat also identifies areas that may require special
management considerations or protection, and may help provide
protection to areas where significant threats to the species have been
identified or help to avoid accidental damage to such areas.
In order to be included in a critical habitat designation, the
habitat must be ``essential to the conservation of the species.''
Critical habitat designations identify, to the extent known and using
the best scientific and commercial data available, habitat areas that
provide essential life cycle needs of the species (i.e., areas on which
are found the primary constituent elements, as defined at 50 CFR
424.12(b)). Section 3(5)(C) of the Act states that not all areas that
can be occupied by a species should be designated as critical habitat
unless the Secretary determines that all such areas are essential to
the conservation of the species. Our regulations (50 CFR 424.12(e))
also state that, ``The Secretary shall designate as critical habitat
areas outside the geographic area presently occupied by the species
only when a designation limited to its present range would be
inadequate to ensure the conservation of the species.''
Section 4(b)(2) of the Act requires that we take into consideration
the economic impact, and any other relevant impact, of specifying any
particular area as critical habitat. We may exclude areas from critical
habitat designation when the benefits of exclusion outweigh the
benefits of including the areas within critical habitat, provided the
exclusion will not result in extinction of the species.
Our Policy on Information Standards Under the Endangered Species
Act, published on July 1, 1994 (59 FR 34271), provides criteria,
establishes procedures, and provides guidance to ensure that decisions
made by the Service represent the best scientific and commercial data
available. It requires that our biologists, to the extent consistent
with the Act and with the use of the best scientific and commercial
data available, use primary and original sources of information as the
basis for recommendations to designate critical habitat. When
determining which areas are critical habitat, a primary source of
information should be the listing rule for the species. Additional
information may be obtained from a recovery plan, articles in peer-
reviewed journals, conservation plans developed by States and counties,
scientific status surveys and studies, and biological assessments or
other unpublished materials (i.e., gray literature).
Section 4 requires that we designate critical habitat based on what
we know at the time of the designation. Habitat is often dynamic,
however, and populations may move from one area to another over time.
Furthermore, we recognize that designation of critical habitat may not
include all of the habitat areas that may eventually be determined to
be necessary for the recovery of the species. For these reasons,
critical habitat designations do not signal that habitat outside the
designation is unimportant or may not be required for recovery. Habitat
areas outside the critical habitat designation will continue to be
subject to conservation actions that may be implemented under section
7(a)(1) of the Act and to the regulatory protections afforded by the
section 7(a)(2) jeopardy standard, and the section 9 take prohibition,
as determined on the basis of the best available information at the
time of the action. It is possible that federally funded or assisted
projects affecting listed species outside their designated critical
habitat areas could jeopardize those species. Similarly, critical
habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans, or
other species conservation planning and recovery efforts if new
information available to these planning efforts calls for a different
outcome.

Methods

As required by the Act and regulations (section 4(b)(2) and 50 CFR
424.12), we used the best scientific information available to determine
areas that contain the physical and biological features that are
essential for the survival and recovery of the Oahu elepaio. This
information included: peer-reviewed scientific publications (Conant
1977; Banko 1981; VanderWerf 1993, 1994, 1998, 2001; VanderWerf et al.
1997, 2001); the final listing rule for the Oahu elepaio (65 FR 20760);
unpublished reports by the Hawaii State Division of Forestry and
Wildlife (VanderWerf 1999); the Hawaii Natural Heritage Program
database; the Sightings database from the Occurrence and Status of
Birds in Hawaii project maintained at Bishop Museum in Honolulu; the
Oahu Forest Bird Survey conducted in 1991 by the Hawaii State Division
of Forestry and Wildlife; field trip reports in the ``Elepaio''
(journal of the Hawaii Audubon Society); responses to the Oahu elepaio
critical habitat outreach package mailed to Federal, State, and private
land managers and landowners; and comments received during the comment
period.
The distribution and abundance of the Oahu elepaio have declined
seriously in the last few decades (Williams 1987; Oahu elepaio final
listing rule, 65 FR 20760; VanderWerf et al. 2001). The area currently
occupied by the Oahu elepaio represents only about four percent of the
species' original range, and the distribution has contracted into
numerous small fragments (Figure 2). Moreover, the remaining elepaio
subpopulations are small and isolated, comprising six core
subpopulations that contain between 100 and 500 birds, and numerous
small remnant subpopulations, most of which contain fewer than 10 birds
(Table 1). Even if the threats responsible for the decline of the
elepaio were controlled, the existing subpopulations would be unlikely
to persist because their small sizes make them vulnerable to extinction
due to a variety of natural processes. Small populations are
particularly vulnerable to reduced reproductive vigor caused by
inbreeding depression, and they may suffer a loss of genetic
variability over time due to random genetic drift, resulting in
decreased evolutionary potential and ability to cope with environmental
change (Lande 1988, IUCN 2000). Small populations are also
demographically vulnerable to extinction caused by random fluctuations
in population size and sex ratio and to catastrophes such as hurricanes
(Lande 1988). Survival and reproduction of elepaio are known to
fluctuate across years in response to variation in disease prevalence
and predator populations (VanderWerf 1998, 1999), possibly due to El
Ninno episodes and variation in rainfall, which may exacerbate the
threats associated with small population size (Lande 1988).
Elepaio are highly territorial; each pair defends an area of a
certain size, depending on the forest type and structure, resulting in
a maximum population density or carrying capacity (VanderWerf 1998).
Although elepaio have declined island-wide and the range has
contracted, density in the remaining core subpopulations is high, and
much of the currently occupied land is at or near carrying capacity and
cannot support many more elepaio than it currently supports (VanderWerf
et al. 1997, 2001). Consequently, each of the currently occupied areas
is too small to support an elepaio population large enough to be
considered safe from extinction. In order for the number of birds in
each subpopulation to increase,

[[Page 63760]]

additional land must be available for young birds to establish new
territories and attract mates. The potential for expansion is
especially important for the smallest subpopulations that currently
contain only a few individuals. Because of their very small size and
skewed sex ratio, these tiny subpopulations are unlikely to persist
more than a few generations if limited to the currently occupied area.
Elepaio are also relatively sedentary; adults have high fidelity to
their territory and juveniles rarely disperse more than 1 km (0.62 mi)
in search of a territory (VanderWerf 1998). Because the areas currently
occupied by elepaio are separated from each other by many kilometers
(Figure 1) and elepaio are unlikely to disperse long distances, the
existing subpopulations probably are isolated (VanderWerf et al. 2001).
The Oahu elepaio evolved in an environment with large areas of
continuous forest habitat covering much of the island (Figure 2), and
their dispersal behavior is not adapted to a fragmented landscape. In
the past, subpopulations were less isolated and dispersal and genetic
exchange among different parts of the island probably was more
frequent. Providing links among subpopulations via dispersal would
increase the overall effective population size through genetic exchange
and equalization of sex ratios and breeding opportunities, thereby
helping to alleviate the threats associated with small population size,
and would better reflect the conditions under which the elepaio
dispersal behavior evolved. In particular, enlargement of small
subpopulations by expansion onto adjacent lands not only would increase
the chances of their long-term survival, but also would improve
connectivity among subpopulations by enhancing their value as
``stepping stones'' within the distribution of the entire population.
Section 3(5)(A)(i) of the Act provides that areas outside the
geographical area currently occupied by the species may meet the
definition of critical habitat upon determination that they are
essential for the conservation of the species. Because of the
territorial nature of the Oahu elepaio, its small total population
size, limited range, fragmented distribution, and resulting
vulnerability to genetic, demographic, and environmental threats, we
find that inclusion of currently unoccupied areas identified as
containing the primary constituent elements is essential to the
conservation of the species. The final rule listing the Oahu elepaio as
endangered emphasized that the ``small total population size, limited
distribution, and population fragmentation make this taxon particularly
vulnerable to reduced reproductive vigor and the effects of naturally
occurring events'' (65 FR 20760). Recovery will require restoration of
elepaio in areas that were formerly inhabited but that are not
currently occupied, through natural dispersal, translocation, or
release of captive birds. Unoccupied areas adjacent to currently
occupied areas are needed for recovery to allow expansion of existing
subpopulations and help alleviate the threats associated with small
population size. Unoccupied lands linking subpopulations are needed for
recovery to provide opportunities for dispersal among subpopulations,
promote genetic exchange, and facilitate finding of mates.
Specifically, each of the existing core populations in Pahole-
Kahanahaiki, Makaha-Waianae Kai, Schofield Barracks West Range, the
southern Waianae Mountains, the central leeward Koolau Mountains,
Waikane-Kahana, and the southern leeward Koolau Mountains are small and
isolated, and are unlikely to be viable on their own. The long-term
chances for persistence of these subpopulations would increase if each
subpopulation increased in size by expanding onto adjacent lands and if
the connectivity among the subpopulations was enhanced by occasional
dispersal of individuals across intervening lands.
We determined the amount and spatial arrangement of critical
habitat needed to support a viable population of Oahu elepaio. Because
a recovery plan for the Oahu elepaio has not been completed yet, in
making this determination we looked to the historical distribution of
the Oahu elepaio for a model of a viable population. The best and most
recent information available on the distribution of an apparently
viable Oahu elepaio population is from 1975, when extensive surveys
were conducted over much of the island (Shallenberger 1977,
Shallenberger and Vaughn 1978, Banko 1981). Elepaio began declining on
Oahu before 1975 and already had disappeared from some parts of the
island (Figure 2; Conant 1977, Williams 1987, VanderWerf et al. 2001),
but in 1975 the subpopulations were still relatively large and birds
were distributed in two well-connected population clusters, one in the
Waianae Mountains and one in the Koolau Mountains. The areas occupied
since 1975 also are likely to be most suitable for recovery because
they supported elepaio for a longer period. The number and distribution
of Oahu elepaio in 1975 has allowed for the persistence of a
population, albeit in a declining state, for more than 25 years. We
believe that active management of threats, including nest predation and
disease, in areas reflecting the distribution in 1975 would allow for
long-term recovery. This approach is consistent with the approved
recovery outline for the Oahu elepaio; if, after critical habitat for
the Oahu elepaio is designated, a final approved recovery plan for
Hawaiian forest birds calls for a different approach to the
conservation of the Oahu elepaio, we will consider amending the
critical habitat designation, subject to resource and workload
priorities.

Primary Constituent Elements

In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12, in determining which areas to propose as critical
habitat, we are required to consider those physical and biological
features that are essential to the conservation of the species and that
may require special management considerations and protection. Such
features are termed primary constituent elements, and include but are
not limited to: space for individual and population growth and for
normal behavior; food, water, air, light, minerals and other
nutritional or physiological requirements; cover or shelter; sites for
nesting and rearing of offspring; and habitats that are protected from
disturbance and are representative of the historic geographical and
ecological distributions of the species.
Elepaio are adaptable and able to forage and nest in a variety of
forest types composed of both native and introduced plant species
(Conant 1977, VanderWerf 1993, 1994, 1998). Nest site selection by
elepaio is non-specialized; nests have been found in 7 native and 13
introduced plant species (E. VanderWerf, unpubl. data). Shallenberger
and Vaughn (1978) found the highest relative abundance of elepaio in
forest dominated by introduced guava and kukui trees, but they also
found elepaio in the following forest types (in order of decreasing
abundance): mixed native-exotic; tall exotic; koa dominant; mixed koa-
ohia; low exotic; ohia dominant; and ohia scrub. This distribution does
not imply that elepaio prefer introduced plant species, but probably
reflects a preference by elepaio for riparian vegetation in valleys and
the high degree of habitat disturbance and abundance of introduced
plants in riparian areas. VanderWerf et al. (1997) found that (1)
forest structure was more

[[Page 63761]]

important to elepaio than plant species composition, (2) most birds
occurred in areas with a continuous forest canopy and a dense
understory, and (3) population density was roughly twice as high in
tall riparian vegetation in valleys as in shorter forest on ridges.
Fifty-five percent of the currently occupied area consists of forest
dominated by introduced plant species, 23 percent is native wet forest,
17 percent is native mesic forest, and 5 percent is native dry forest
and shrub land (VanderWerf et al. 2001).
The primary constituent elements required by the Oahu elepaio for
foraging, sheltering, roosting, nesting, and rearing of young are
undeveloped wet, mesic, and dry forest habitats composed of native or
introduced plant species. Higher population density can be expected in
tall, closed canopy riparian forest than in low scrubby forest on
ridges and summits. In addition, the primary constituent elements
associated with the biological needs of dispersal and genetic exchange
among populations are undeveloped wet or dry shrub land and wet or dry
cliff habitats. Elepaio may not establish territories in shrub or cliff
habitats and may use them only transiently, but areas containing these
habitats are important for linking populations by providing the
opportunities for dispersal and genetic exchange.
Within the forests and shrub lands providing the primary
constituent elements, plant species composition varies with rainfall,
elevation, and degree of habitat disturbance, and plant species occur
in a variety of assemblages. Common native and introduced species
within these plant assemblages include, but are not limited to, ohia
(Metrosideros polymorpha), koa (Acacia koa), papala kepau (Pisonia
umbellifera), lama (Diospyros sandwicensis), mamaki (Pipturus albidus),
kaulu (Sapindus oahuensis), hame (Antidesma platyphyllum), alaa
(Pouteria sandwicensis), aalii (Dodonaea viscosa), naupaka kuahiwi
(Scaevola spp.), pukiawe (Styphelia tameiameiae), uluhe (Dicranopteris
linearis), guava (Psidium guajava), strawberry guava (P. cattleianum),
mango (Mangifera indica), kukui (Aleurites moluccana), christmasberry
(Schinus terebinthifolius), ti (Cordyline terminalis), rose apple
(Syzygium jambos), mountain apple (S. malaccense), and Java plum (S.
cumini).

Criteria Used To Identify Critical Habitat

We used several criteria to identify and select lands for
designation as critical habitat. We began with areas that are currently
occupied by elepaio, excluding a few very small, isolated
subpopulations that contain only a single male. We then added
unoccupied lands containing the primary constituent elements that were
needed for recovery of the species. As discussed in greater detail in
the Methods section, in deciding which unoccupied areas were essential
for recovery, we used the distribution of elepaio in 1975 as a model of
a viable population. Within this area of distribution in 1975, we gave
preference to lands that (a) provided more preferred forest types, (b)
were more recently occupied (since 1975), and (c) were contiguous and
formed large blocks of preferred habitat or provided links between
areas of preferred habitat. We determined the boundaries of critical
habitat units by the extent of suitable forest containing the primary
constituent elements, which in many areas coincided with the boundaries
of State Forest Reserves, Natural Area Reserves, or other conservation
lands. We did not include urban and agricultural lands because they
generally do not contain the primary constituent elements and are not
suitable for elepaio. We included lower Wailupe Valley because it
contains the primary constituent elements, is currently occupied by
elepaio, and is contiguous with a large subpopulation. Although this
area is zoned for urban use, the topography and unstable soil
conditions make it unsuitable for development.
We were unable to map the critical habitat unit boundaries in
sufficient detail to exclude all existing developed lands that do not
contain the primary constituent elements. However, existing development
features and structures within the boundaries of the mapped units, such
as buildings, roads, aqueducts, antennas, water tanks, agricultural
fields, paved areas, lawns, and other urban landscaped areas generally
do not contain the primary constituent elements and are not critical
habitat. Federal actions limited to those areas, therefore, would not
trigger a section 7 consultation, unless they affect the species or
primary constituent elements in adjacent critical habitat.

Application of the Section 3(5)(A) Criteria Regarding Special
Management Considerations or Protection

Critical habitat is defined in section 3, paragraph (5)(A) of the
Act as--(i) the specific areas within the geographic area occupied by a
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features (I) essential to the
conservation of the species and (II) that may require special
management considerations or protection; and (ii) specific areas
outside the geographic area occupied by a species at the time it is
listed, upon a determination that such areas are essential for the
conservation of the species. Special management and protection are not
required if adequate management and protection are already in place.
Adequate special management or protection is provided by a legally
operative plan or agreement that addresses the maintenance and
improvement of the primary constituent elements important to the
species and manages for the long-term conservation of the species. If
any areas containing the primary constituent elements currently were
being managed to address the conservation needs of the Oahu elepaio and
did not require special management or protection, these areas would not
meet the definition of critical habitat in section 3(5)(A)(i) of the
Act and would not be included in the designation.
To determine if a plan provides adequate management or protection
we consider 3 criteria: (1) Whether the plan is current and specifies
the management actions and whether such actions provide sufficient
conservation benefit to the species; (2) whether the plan provides
assurances that the conservation management strategies will be
implemented, and in determining this we consider whether: (a) A
management plan or agreement exists that specifies the management
actions being implemented or to be implemented; (b) the schedule for
implementation is timely; (c) there is a high probability that the
funding source(s) or other resources necessary to implement the actions
will be available; and (d) the party(ies) have the authority and long-
term commitment to implement the management actions, as demonstrated,
for example, by a legal instrument providing enduring protection and
management of the lands, and (3) whether the plan provides assurances
that the conservation management strategies will be effective. In
determining whether an action is likely to be effective, we consider
whether: (a) The plan specifically addresses the management needs,
including reduction of threats to the species; (b) such actions have
been successful in the past; (c) there are provisions for monitoring
and assessment of the effectiveness of the management actions; and (d)
adaptive management principles have been incorporated into the plan.
Based on information provided to us by landowners and managers to
date, we

[[Page 63762]]

find that no areas are adequately managed and protected to address the
threats to elepaio. Several areas are covered under current management
plans and are being managed in a manner that meets some of the
conservation needs of the Oahu elepaio, but in no areas does the
management adequately reduce the primary threats to this species.
Specifically, the threat from introduced nest predators, primarily
rodents, has been successfully managed on a small scale in Honouliuli
Preserve by The Nature Conservancy of Hawaii, in Schofield Barracks
West Range and Makua Military Reservation by the U.S. Army, and in the
Honolulu Watershed Forest Reserve by the Hawaii State Division of
Forestry and Wildlife, but in each case the management actions have
affected only a small proportion of the elepaio in the area. Adequate
reduction of the threat from rodents will require larger scale
management that protects more elepaio. The other primary threat to the
Oahu elepaio, introduced diseases carried by mosquitoes, has not been
managed in any area. In several areas, such as Schofield Barracks, the
threat from fire also has not been managed adequately.
The Oahu Forest National Wildlife Refuge does not meet these
criteria because the refuge was created only recently (December 2000)
and current management does not yet provide adequate management for the
Oahu elepaio. Refuge lands have not been adequately surveyed yet, and
it remains uncertain whether the area is currently occupied by elepaio.
The Sikes Act Improvements Amendment of 1997 (Sikes Act) requires
each military installation that includes land and water suitable for
the conservation and management of natural resources to complete, by
November 17, 2001, an Integrated Natural Resources Management Plan
(INRMP). An INRMP integrates implementation of the military mission of
the installation with stewardship of the natural resources found there.
Each INRMP is to include an assessment of the ecological needs on the
installation, including needs to provide for the conservation of listed
species; a statement of goals and priorities; a detailed description of
management actions to be implemented to provide for these ecological
needs; and a monitoring and adaptive management plan. We consult with
the military on the development and implementation of INRMPs for
installations with listed species. We believe that bases that have
completed and approved INRMPs that address the needs of the species
generally do not meet the definition of critical habitat discussed
above, because they require no additional special management or
protection. Therefore, we do not include these areas in critical
habitat designations if they meet the following three criteria: (1) A
current INRMP must be complete and provide a conservation benefit to
the species; (2) the plan must provide assurances that the conservation
management strategies will be implemented; and (3) the plan must
provide assurances that the conservation management strategies will be
effective, by providing for periodic monitoring and revisions as
necessary. If all of these criteria are met, then the lands covered
under the plan would not meet the definition of critical habitat. To
date, no military installation on Oahu has completed a final INRMP that
provides sufficient management and protection for the elepaio. The
Service received information from the Army indicating they understand
and agree that the current INRMP for Army installations on Oahu does
not obviate the need for critical habitat designations because it does
not meet criteria for special management or protection necessary to
ensure long-term conservation of the species (Department of the Army,
in litt. 2001).

Critical Habitat Designation

Lands designated as critical habitat occur in five separate units
and provide the full range of primary constituent elements needed by
the Oahu elepaio, including: a variety of currently occupied
undeveloped forested areas that are used for foraging, roosting,
sheltering, nesting, and raising offspring; a variety of currently
unoccupied undeveloped forested areas that are adjacent to occupied
areas and provide for expansion of existing subpopulations; and shrub
land and cliff habitats that link subpopulations and can be used for
dispersal. If elepaio were restored throughout each of the critical
habitat units, the resulting distribution would resemble the
distribution in 1975, when the subpopulations were larger and less
isolated, the overall population appeared to be viable, and the Oahu
elepaio was not considered endangered. The area designated as critical
habitat (26,661 ha) is larger than the area occupied in 1975 (20,900
ha) because the critical habitat contains not only lands expected to
support breeding elepaio populations, but also intervening lands that
provide for periodic dispersal, which is a primary biological need, but
not for permanent occupation.

Table 2.--Critical Habitat Units and Potential Elepaio Populations
[Data on current density from VanderWerf et al. (2001). Unit 4 is not currently occupied by elepaio; the density
used to estimate the potential elepaio population of this unit is an average of the densities in the two nearest
units, central and southern Koolau.]
----------------------------------------------------------------------------------------------------------------
Potential
Elepaio density in elepaio
Critical habitat unit Area currently occupied parts of population
unit in unit
----------------------------------------------------------------------------------------------------------------
1. Northern Waianae Mountains............ 4,454 ha.................... 0.45 per ha................ 2,004
11,005 ac................... 0.18 per ac................
2. Southern Waianae Mountains............ 2,422 ha.................... 0.39 per ha................ 945
5,985 ac.................... 0.16 per ac................
3. Central Koolau Mountains.............. 14,801 ha................... 0.33 per ha................ 4,884
36,573 ac................... 0.14 per ac................
4. Kalihi-Kapalama....................... 804 ha...................... 0.39 per ha................ 314
1,987 ac................... 0.16 per ac...............
5. Southern Koolau Mountains............. 4,180 ha.................... 0.45 per ha................ 1,881
10,329 ac................... 0.18 per ac...............
All units................................ 26,661 ha................... 0.37 per ha................ 10,028
65,879 ac................... 0.15 per ac................
----------------------------------------------------------------------------------------------------------------

[[Page 63763]]

The potential elepaio population in the area designated as critical
habitat is approximately 10,028 birds, as estimated by multiplying the
current density of elepaio in different parts of the island by the area
of each critical habitat unit (Table 2). Although population density
varies somewhat among locations depending on the habitat quality, we
believe the current overall density of elepaio on Oahu, 37.6 birds per
square kilometer, is a reasonable estimate of the potential population
density throughout the entire area designated as critical habitat. It
may be possible to restore elepaio to higher densities in some large
blocks of dense forest, but in other areas, such as steep slopes and
ridges, it likely will be difficult to establish dense populations. The
densities used to calculate these potential populations are average
values and the estimates are approximate.
Critical habitat for the Oahu elepaio includes land under Federal,
State, and private ownership, with Federal lands being managed by the
Department of Defense and the Department of the Interior. Designated
lands include most (99 percent) of the species' current range and
encompass approximately 21 percent of the species' original range.
Approximately 22 percent of designated lands are currently occupied by
elepaio, and 78 percent are currently unoccupied but were recently
occupied (since 1975). A detailed description of each unit and reasons
for designating each portion of the unit as critical habitat are
presented below. The approximate area and land ownership within each
critical habitat unit are shown in Table 3.

Table 3.--Approximate Area (Hectares, Acres) of Critical Habitat Units by Land Ownership
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit Federal \1\ State County Private Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Northern Waianae Mountains...... 774 ha................ 3,033 ha.............. 646 ha............... 0.7 ha............... 4,454 ha.
1,913 ac.............. 7,494 ac.............. 1,596 ac............. 2 ac................. 11,005 ac.
2. Southern Waianae Mountains...... 616 ha................ 308 ha................ ................... 1,498 ha............. 2,422 ha.
1,522 ac.............. 761 ac................ 3,702 ac............. 5,985 ac.
3. Central Koolau Mountains........ 2,852 ha.............. 3,754 ha.............. 308 ha............... 7,887 ha............. 14,801 ha
7,047 ac.............. 9,276 ac.............. 761 ac............... 19,489 ac........... 36,573 ac.
4. Kalihi-Kapalama................. ...................... 397 ha................ 179 ha............... 228 ha............... 804 ha.
981 ac................ 442 ac............... 564 ac.............. 1,987 ac.
5. Southern Koolau Mountains....... 3 ha.................. 2,553 ha.............. 476 ha............... 1,148 ha............. 4,180 ha.
7 ac.................. 6,309 ac.............. 1,176 ac............. 2,837 ac............. 10,329 ac.
--------------------------------------------------------------------------------------------------------------------
Total.......................... 4,245 ha.............. 10,045 ha............. 1,609 ha............. 10,762 ha............ 26,661 ha.
10,489 ac............. 24,821 ac............. 3,975 ac............. 26,594 ac............ 65,879 ac.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Federal lands include Department of Defense and U.S. Fish and Wildlife Service.

Unit 1: Northern Waianae Mountains

Unit 1 consists of approximately 4,454 ha (11,005 ac) encompassing
the higher elevations of the northern Waianae Mountains. It is bounded
on the south by Kolekole pass, and on the north, east, and west by
forest edge created by human actions. Natural features within the unit
include Mt. Kaala, the highest peak on Oahu at 1,227 m (4,025 feet),
several other high peaks along the spine of the Waianae Range, and the
upper portions of valleys and slopes, including Waianae Kai, Makaha,
Makua, Kahanahaiki, and Kuaokala valleys on the west slope, Haleauau
and Mohiakea gulches on the east slope, and several narrow valleys on
the north slope. Vegetation consists primarily of mixed-species wet,
mesic, and dry forest communities composed of native and introduced
plants, with smaller amounts of dry shrub land and cliff plant
communities (Hawaii Heritage Program 1991).
Unit 1 contains two important elepaio core subpopulations: One in
upper Haleauau and Mohiakea gulches above the firebreak road on U.S.
Army Schofield Barracks West Range, and the other in upper Makaha and
Waianae Kai valleys on Waianae Kai State Forest Reserve and City and
County of Honolulu land. The unit also includes small scattered elepaio
subpopulations in Pahole and Kaala State Natural Area Reserves,
Mokuleia, Makua-Keaau, and Kuaokala State Forest Reserves, and the
upper portion of the U.S. Army Makua Military Reservation. Thirty
percent of Unit 1 is currently occupied by elepaio. Of critical habitat
lands on the West Range of Schofield Barracks, approximately 70 percent
are currently occupied by elepaio. The subpopulation on Schofield
Barracks is of particular importance to the conservation of the species
because it is the densest and third largest subpopulation on the
island, contains the majority of birds remaining in the northern
Waianae Mountains, and may serve as a source that supports smaller
subpopulations nearby. Elepaio in the northern Waianae Mountains are
morphologically and behaviorally distinct from elepaio in other parts
of the island, and conservation of this population segment would not be
possible without the core subpopulation on Schofield Barracks.
In addition to protecting lands occupied by the two core elepaio
subpopulations and six smaller subpopulations, designated lands in Unit
1 provide for expansion of these subpopulations by including currently
unoccupied lands that were occupied within the past 30 years and
contain the types of forest most preferred by elepaio. Specifically,
currently unoccupied lands in Pahole and Kaala State Natural Area
Reserves, Mokuleia, Makua-Keaau, and Kuaokala State Forest Reserves,
upper Makua Valley, and upper Kahanahaiki Valley are needed for
recovery to allow the number of birds in existing subpopulations to
increase. The current distribution of elepaio in Unit 1 represents a
remnant of what was once a single, large, continuous elepaio population
in the northern Waianae Mountains. Inclusion of currently unoccupied
forested lands that provide for expansion and shrub land and cliff
habitats that provide for dispersal among subpopulations will provide
linkage needed to approximate the original genetic and demographic
conditions that once existed in this area.

Unit 2: Southern Waianae Mountains

Unit 2 consists of approximately 2,422 ha (5,985 ac) encompassing
the higher elevations of the southern Waianae Mountains. It is bounded
on the north by Kolekole Pass, and on the east, west, and south by
forest edge created by human actions. Natural features of the unit
include several high peaks along the spine of the southern Waianae
Range, including Palikea, Kaua, Kanehoa, and Hapapa, the upper portions
of Lualualei and Nanakuli valleys on the west side of the mountains,
and the upper portions of numerous narrower valleys on the east side of
the mountains. Vegetation consists primarily of mixed-species

[[Page 63764]]

mesic and dry forest communities composed of native and introduced
plants, with smaller amounts of dry shrub land and cliff communities
(Hawaii Heritage Program 1991).
Unit 2 contains the second largest Oahu elepaio subpopulation,
encompassing several land parcels, including Honouliuli Preserve
(managed by The Nature Conservancy of Hawaii), Naval Magazine Pearl
Harbor Lualualei Branch, Nanakuli State Forest Reserve, and other
unmanaged State lands. This unit also contains several scattered
elepaio territories north of the core subpopulation on U.S. Army
Schofield Barracks South Range. Fifty percent of Unit 2 is currently
occupied by elepaio. In addition to protecting currently occupied
habitat, designated lands in Unit 2 include peripheral areas of
currently unoccupied habitat in Honouliuli Preserve, Lualualei, and
Schofield Barracks South Range that are needed for recovery to allow
expansion of the core subpopulation, and dry shrub land and cliff
habitats on unmanaged State land between Lualualei and Honouliuli and
on Schofield Barracks South Range that provide for dispersal among
parts of the southern Waianae subpopulation and between the northern
and southern Waianae subpopulations.

Unit 3: Central Koolau Mountains

Unit 3 is the largest unit, encompassing 14,801 ha (36,573 ac) of
the higher elevations of the central Koolau Mountains. Natural features
of the unit include the summit of the Koolau Range and the upper
portions of numerous narrow valleys separated by steep ridges,
including (from south to north) Manaiki, Moanalua, South Halawa, North
Halawa, Kalauao, Waimalu, Waimano, Manana, Waiawa, Kipapa, Kaukonahua,
and Poamoho on the leeward (western) side, and Waihee, Kaalaea,
Waiahole, Waikane, and Kahana on the windward (eastern) side.
Vegetation consists primarily of montane and lowland wet and mesic
forest, and smaller areas of shrub land and wet cliff plant communities
(Hawaii Heritage Program 1991). The higher elevations of the unit are
primarily native forest dominated by ohia and koa, but the lower
elevations are more disturbed and dominated by a variety of introduced
plant species.
Unit 3 contains two important core elepaio subpopulations: one
located almost entirely on private land in Moanalua, North and South
Halawa, Manaiki, and Kalauao valleys at the southern end of the unit;
the other on the windward side in Kahana Valley State Park and on
private lands in Waikane Valley. The unit also contains a few scattered
elepaio territories in Waiahole State Forest Reserve. Thirteen percent
of Unit 3 is currently occupied by elepaio. Designated lands include
the existing subpopulations, and also provide for the expansion and
recovery of existing subpopulations by including adjacent lands in
Manaiki, Waimalu, Waimano, Manana, Waiawa, Kipapa, Kaukonahua, and
Poamoho on the leeward (western) side, and in Waihee, Kaalaea,
Waiahole, Waikane, and Kahana on the windward (eastern) side that are
currently unoccupied but were occupied since 1975. Unit 3 also includes
wet shrub land and cliff habitats along the Koolau summit that provide
for dispersal of elepaio between the windward and leeward sides of the
Koolau Mountains. The existing core subpopulations are geographically
distant from each other and probably are isolated. Restoration of
elepaio in intervening areas would increase the chances of dispersal
and genetic exchange between subpopulations. Currently unoccupied
habitat lies on the Oahu Forest National Wildlife Refuge, U.S. Army
Schofield Barracks East Range, U.S. Army Fort Shafter, Ewa and Waiahole
State Forest Reserves, Kahana Valley State Park, and 9 privately owned
parcels. The narrow indentation in the southern portion of Unit 3
reflects the H-3 freeway and adjacent cleared areas in North Halawa
Valley.

Unit 4: Kalihi-Kapalama

Unit 4 consists of approximately 804 ha (1,987 ac) encompassing the
higher elevations of the leeward (western) side of the central Koolau
Mountains above Kalihi and Kapalama. It is bounded on the north by the
Likelike Highway and on the south by the Pali Highway. Natural features
of the unit include the upper portions of Kalihi, Kamanaiki, and
Kapalama valleys. Vegetation consists primarily of mixed-species wet
and mesic forest composed of native and introduced plant species
(Hawaii Heritage Program 1991). The higher elevations are primarily
native forest dominated by ohia and koa, but the lower elevations are
more disturbed and are dominated by introduced plant species. This unit
is not known to contain any elepaio at present, but it was occupied
within the last 20 years, still contains suitable forest habitat, and
provides an important habitat stepping-stone that increases the chances
of dispersal and genetic exchange between elepaio subpopulations in the
central and southern Koolau units. This unit includes lands within the
State of Hawaii Honolulu Watershed Forest Reserve, two parcels owned by
the City and County of Honolulu, and 3 private parcels.

Unit 5: Southern Koolau Mountains

Unit 5 consists of approximately 4,180 ha (10,329 ac) encompassing
the higher elevations of the southern Koolau Mountains. It is bounded
on the west by the Pali Highway. Natural features of the unit include:
the summit of the southern Koolau Mountains, including Konahuanui, the
highest peak in the Koolau Range at 960 m (3,150 ft), the upper portion
of Maunawili Valley on the windward (northern) side of the mountains,
and the upper portions of numerous narrow valleys separated by steep
ridges on the leeward side, including (from east to west) Kaalakei,
Kuliouou, Kupaua, Pia, Kului, Wailupe, Kapakahi, Waialae Nui, Palolo,
Manoa, Tantalus, and Pauoa. The vegetation consists primarily of mixed-
species wet, mesic, and dry forest communities, with small areas of
mesic shrub land and wet cliff plant communities (Hawaii Heritage
Program 1991). The higher elevations are primarily native forest
dominated by ohia and koa, but the lower elevations are more disturbed
and are dominated by introduced plant species, particularly guava,
kukui, christmasberry, and mango.
Unit 5 contains the largest remaining elepaio subpopulation,
located in Kuliouou, Kupaua, Pia, Kului, Wailupe, Kapakahi, and Waialae
Nui valleys, and two smaller elepaio populations located nearby in
Palolo and Manoa valleys. Twenty-nine percent of Unit 5 is currently
occupied by elepaio. The current distribution of elepaio in the
southern Koolau Mountains represents a remnant of what was once a
single, large, continuous population. In addition to protecting the
largest remaining subpopulation and two smaller subpopulations,
designated lands in Unit 5 provide for recovery through expansion of
existing subpopulations by including currently unoccupied lands in
Maunawili, Palolo, Manoa, Nuuanu, Tantalus, and Pauoa that were
occupied since 1975 and contain the most preferred forest types.
Designated lands in Unit 5 also provide for recovery by including shrub
land and wet cliff habitats along the Koolau summit that are used for
dispersal and link subpopulations on the windward and leeward sides of
the Koolau Mountains, thereby increasing the potential genetic exchange
and maintenance of optimal sex ratios. Restoration of elepaio in
unoccupied lands in Tantalus and Pauoa at the western end of Unit 5
would increase the chances of dispersal and genetic exchange between
the southern Koolau

[[Page 63765]]

subpopulation and the central Koolau subpopulation. Ownership within
Unit 5 consists of the Honolulu Watershed, Maunawili, and Kuliouou
State Forest Reserves, several parcels owned by the City and County of
Honolulu, and nine private parcels.

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a) of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out do
not destroy or adversely modify critical habitat. Destruction or
adverse modification occurs when a Federal action directly or
indirectly alters critical habitat to the extent it appreciably
diminishes the value of critical habitat for the conservation of the
species. Individuals, organizations, States, local governments, and
other non-Federal entities are affected by the designation of critical
habitat only if their actions occur on Federal lands, require a Federal
permit, license, or other authorization, or involve Federal funding.
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as
endangered or threatened and with respect to its critical habitat, if
any is designated or proposed. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(4) of the Act requires Federal agencies to
confer with us on any action that is likely to jeopardize the continued
existence of a species proposed for listing or result in destruction or
adverse modification of proposed critical habitat. Conference reports
provide conservation recommendations to assist the agency in
eliminating conflicts that may be caused by the proposed action. The
conservation recommendations in a conference report are advisory.
We may issue a formal conference report, if requested by the
Federal action agency. Formal conference reports include an opinion
that is prepared according to 50 CFR 402.14, as if the species was
listed or critical habitat was designated. We may adopt the formal
conference report as the biological opinion when the species is listed
or critical habitat is designated, if no substantial new information or
changes in the action alter the content of the opinion (see 50 CFR
402.10(d)).
If a species is listed or critical habitat is designated, section
7(a)(2) of the Act requires Federal agencies to ensure that actions
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of such a species or destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency (action agency)
must enter into consultation with us. Through this consultation, the
Federal action agency would ensure that the permitted actions do not
destroy or adversely modify critical habitat.
If we issue a biological opinion concluding that a project is
likely to result in the destruction or adverse modification of critical
habitat, we would also provide reasonable and prudent alternatives to
the project, if any are identifiable. Reasonable and prudent
alternatives are defined at 50 CFR 402.02 as alternative actions
identified during consultation that can be implemented in a manner
consistent with the intended purpose of the action, that are consistent
with the scope of the Federal agency's legal authority and
jurisdiction, that are economically and technologically feasible, and
that the Director believes would avoid destruction or adverse
modification of critical habitat. Reasonable and prudent alternatives
can vary from slight project modifications to extensive redesign or
relocation of the project. Costs associated with implementing a
reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where critical
habitat is subsequently designated and the Federal agency has retained
discretionary involvement or control over the action or such
discretionary involvement or control is authorized by law.
Consequently, some Federal agencies may request reinitiation of
consultation with us on actions for which formal consultation has been
completed if those actions may affect designated critical habitat.
Activities on Federal lands that may affect the elepaio or its
critical habitat will require section 7 consultation. Activities on
private or State lands requiring a permit from a Federal agency, such
as a permit from the U.S. Army Corps of Engineers under section 404 of
the Clean Water Act, or some other Federal action, including funding
(e.g., from the Federal Highway Administration, Federal Aviation
Administration, Federal Emergency Management Agency, or Natural
Resources Conservation Service) will also continue to be subject to the
section 7 consultation process. Federal actions not affecting listed
species or critical habitat and actions on non-Federal lands that are
not federally funded or permitted do not require section 7
consultation.
Section 4(b)(8) of the Act requires us to evaluate briefly in any
proposed or final regulation that designates critical habitat those
activities involving a Federal action that may adversely modify such
habitat or that may be affected by such designation. Activities that
may result in the destruction or adverse modification of critical
habitat include those that alter the primary constituent elements to an
extent that the value of critical habitat for the survival and recovery
of the elepaio is appreciably reduced. We note that such activities
also may jeopardize the continued existence of the species. Activities
that may directly or indirectly adversely affect critical habitat for
the Oahu elepaio include, but are not limited to:
(1) Removing, thinning, or destroying elepaio habitat (as defined
in the Primary Constituent Elements discussion), whether by burning,
mechanical, chemical, or other means (e.g., woodcutting, grading,
overgrazing, construction, road building, mining, herbicide
application, etc.).
(2) Appreciably decreasing habitat value or quality as an indirect
effect of an action (e.g., introduction or promotion of potential nest
predators, diseases or disease vectors, vertebrate or invertebrate food
competitors, or invasive plant species; forest fragmentation;
overgrazing; augmentation of feral ungulate populations; water
diversion or impoundment, groundwater pumping, or other activities that
alter water quality or quantity to an extent that these activities
affect vegetation structure or produce mosquito breeding habitat; and
activities that increase the risk of fire).
To properly portray the effects of critical habitat designation, we
must first compare the section 7 requirements for actions that may
affect critical habitat with the requirements for actions that may
affect a listed species. Section 7 prohibits actions funded,
authorized, or carried out by Federal agencies from jeopardizing the
continued existence of a listed species or destroying or adversely
modifying the listed species' critical habitat.
Actions likely to result in the destruction or adverse modification
of critical habitat would almost always result in jeopardy to the
species concerned, particularly when the area affected by the proposed
action is occupied by the species concerned. In those cases, critical
habitat provides little additional protection to a species, and the
ramifications of its designation

[[Page 63766]]

are few or none. However, critical habitat designation in unoccupied
areas may trigger consultation under section 7 of the Act where it
would not have otherwise occurred if critical habitat had not been
designated.
Federal agencies already consult with us on activities in areas
currently occupied by the species to ensure that their actions do not
jeopardize the continued existence of the species. These actions
include, but are not limited to:
(1) Regulation of activities affecting waters of the United States
by the Army Corps of Engineers under section 404 of the Clean Water
Act;
(2) Regulation of water flows, damming, diversion, and
channelization by Federal agencies;
(3) Development on private or State lands requiring permits from
other Federal agencies, such as the Department of Housing and Urban
Development;
(4) Military training or similar activities of the U.S. Department
of Defense (Army and Navy) on their lands or lands under their
jurisdiction at Schofield Barracks, Makua Military Reservation, Fort
Shafter, Kawailoa Training Area, and Pearl Harbor Naval Magazine
Lualualei Branch;
(5) Construction of communication sites licensed by the Federal
Communications Commission;
(6) Road construction and maintenance, right-of-way designation,
and regulation of agricultural activities by Federal agencies;
(7) Hazard mitigation and post-disaster repairs funded by the
Federal Emergency Management Agency; and
(8) Activities not previously mentioned that are funded or
authorized by the U.S. Department of Agriculture (Forest Service,
Natural Resources Conservation Service), Department of Defense,
Department of Transportation, Department of Energy, Department of the
Interior (U.S. Fish and Wildlife Service, U.S. Geological Survey,
National Park Service), Department of Commerce (National Oceanic and
Atmospheric Administration), Environmental Protection Agency, or any
other Federal agency.
If you have questions regarding whether specific activities would
constitute adverse modification of critical habitat, contact the Field
Supervisor, Pacific Islands Ecological Services Field Office (see
ADDRESSES section). Requests for copies of the regulations on listed
wildlife and plants and inquiries about prohibitions and permits should
be directed to the U.S. Fish and Wildlife Service, Endangered Species
Act Section 10 Program at the same address.

Exclusions Under Section 4(b)(2)

Section 4(b)(2) of the Act requires that we designate critical
habitat on the basis of the best scientific and commercial information
available, and that we consider the economic and other relevant impacts
of designating a particular area as critical habitat. We may exclude
areas from critical habitat designation if the benefits of exclusion
outweigh the benefits of designation, provided the exclusion will not
result in the extinction of the species. We conducted an analysis of
the economic impacts of designating these areas as critical habitat
prior to a final determination. We find that in no area do the benefits
of exclusion outweigh the benefits of inclusion, and we did not exclude
any areas under Section 4(b)(2).
Currently, no habitat conservation plans (HCPs) include the Oahu
elepaio as a covered species. However, we believe that in most
instances the benefits of excluding HCPs from critical habitat
designations will outweigh the benefits of including them. In the event
that future HCPs are developed within the boundaries of proposed or
designated critical habitat, we will work with applicants to ensure
that the HCPs provide for protection and management of habitat areas
essential for the conservation of this species. This will be
accomplished by either directing development and habitat modification
to nonessential areas, or appropriately modifying activities within
essential habitat areas so that such activities will not adversely
modify the critical habitat.
We will provide technical assistance and work closely with
applicants throughout the development of any future HCPs to identify
lands essential for the long-term conservation of the Oahu elepaio and
appropriate management for those lands. The take minimization and
mitigation measures provided under such HCPs would be expected to
protect the essential habitat lands designated as critical habitat in
this rule and provide for the conservation of the covered species.
Furthermore, we will complete intra-Service consultation on our
issuance of section 10(a)(1)(B) permits for these HCPs to ensure permit
issuance will not destroy or adversely modify critical habitat.

Summary of Comments and Recommendations

In the proposed rule published on June 6, 2001 (66 FR 30372), we
requested that all interested parties submit comments on the proposal.
We also contacted all appropriate State and Federal agencies, county
governments, landowners, and other interested parties and invited them
to comment. In addition, we requested three expert ornithologists and
conservation biologists to provide peer review of the proposed critical
habitat designation. The first comment period closed on August 6, 2001
(66 FR 30372). The comment period was reopened from August 6 to
September 6, 2001, to allow for comments on the draft economic analysis
of the proposed critical habitat and additional comments on the
proposed rule (66 FR 40960).
We received a total of 22 written comments during the two comment
periods. Comments were received from 2 Federal agencies, 5 State
agencies, 8 private organizations or individuals, and 3 peer reviewers.
Four commenters provided comments in both comment periods. We reviewed
all comments received for substantive issues and new data regarding
critical habitat and the Oahu elepaio. Peer reviewer comments are
summarized separately in the next paragraph. Public comments are
grouped into 4 general issues relating to the proposed critical habitat
determination and draft economic analysis, and are addressed in the
following summary.
All three peer reviewers thought our methods for designating
critical habitat were sound, the best available scientific information
was used, and the relevant scientific literature, reports, and recent
research were summarized adequately. All three also felt that inclusion
of currently unoccupied areas was justified and well supported, and
that the definition of primary constituent elements and the criteria
used to identify critical habitat were comprehensive, valid, and
justified. One reviewer commented that the short dispersal distances of
elepaio offspring justify the inclusion of large tracts of contiguous
forest. Two reviewers felt that the size and distribution of the units
would allow for development of sustainable populations, but one
reviewer expressed some doubt whether the amount of critical habitat
proposed, which is similar to the area occupied in 1975, was sufficient
to ensure the survival of the species, because the distribution in 1975
was unstable. Finally, one reviewer suggested that the importance of
wet stunted forest and dry shrubland for dispersal should be more
clearly demonstrated if possible. None of the reviewers provided new
information about the biology or distribution of elepaio or about areas
that should be considered essential to its conservation.

[[Page 63767]]

Issue 1: Biological Justification and Methodology

(1) Comment: Several commenters supported the CH designation and
felt that critical habitat is needed because habitat loss is one of the
primary causes in the decline of the Oahu elepaio.
Service Response: Habitat loss has been an important factor in the
decline of the Oahu elepaio; 56 percent of the former range has been
lost to urban and agricultural development.
(2) Comment: Several commenters supported the inclusion of
unoccupied habitat due to the clear need for the elepaio to expand
outside currently occupied areas if it is to recover.
Service Response: As stated in both the proposed rule and this
final rule, the small population size and fragmented distribution of
the Oahu elepaio make it vulnerable to extinction. Each of the
currently occupied areas is too small to support a viable long-term
population, and recovery will require restoration of elepaio in areas
that were formerly inhabited.
(3) Comment: The area proposed as critical habitat is larger than
necessary. One commenter stated that a smaller area than that proposed
would meet all legal requirements and lessen the regulatory burden.
Based on the area of the proposed critical habitat (26,853 ha, 66,354
ac) and the current population density of elepaio on Oahu (37.6 birds
per square kilometer), the area proposed would provide habitat for
10,100 elepaio. The commenter asserted that elepaio occur at densities
over 200 birds per square kilometer on other islands, that it is
possible to attain densities of 50-100 elepaio per square kilometer on
Oahu, so that less land is needed to support the same number of
elepaio.
Service Response: The critical habitat designation was based on the
distribution of lands required to support a viable population of
elepaio, not on the amount of land required to support a certain number
of elepaio. The viability of a population depends not only on the
number of birds, but also on their distribution. We feel the
distribution of lands in the designation, in large blocks of contiguous
habitat, is necessary for the long-term conservation of elepaio on
Oahu, as a large number of birds distributed in many tiny habitat
fragments is less likely to persist than birds in a single large
population or in several well-connected populations. We also believe
the current density of elepaio on Oahu, 37.6 birds per square
kilometer, is a reasonable estimate of the overall potential population
density throughout the entire area designated as critical habitat. It
probably will be possible to restore elepaio to densities of 50-100
birds per square kilometer in some large blocks of dense forest, but in
other areas density probably will be lower than 37.6 birds per square
kilometer because it will be difficult to establish populations in
other portions of the former range. The density we used to estimate the
potential population is an average value.
(4) Comment: Several commenters supported the designation of
critical habitat on military lands, citing the threats from military
training, particularly fire, to the elepaio.
Service Response: We included all areas containing the primary
constituent elements that are essential to the conservation of the
elepaio, regardless of ownership. We determined that no areas,
including military lands, were sufficiently protected so as not to meet
the definition of critical habitat under section 3(5)(A)(i)(II) of the
Act, or qualified for exclusion from critical habitat under Section
4(b)(2) of the Act. Also see comments 6 and 7.
(5) Comment: Critical habitat designation is not appropriate in
particular areas. One commenter stated it was not appropriate to
designate critical habitat in areas that are not occupied by the
elepaio, and that none of the physical or biological features necessary
to the conservation of the species are present in unoccupied areas. The
Army requested that an area southeast of Puu Pane be removed from Unit
1 because it is marginal habitat for the elepaio and has limited
potential for recovery.
Service Response: All currently unoccupied areas designated as
critical habitat were occupied by elepaio within the past 25 years, and
these areas still contain the primary constituent elements needed by
the elepaio. Even if the threats responsible for the decline of the
elepaio were controlled, the existing subpopulations would be unlikely
to persist because their small sizes and isolation make them vulnerable
to extinction due to a variety of natural processes, such as inbreeding
depression, loss of genetic variability due to genetic drift, decreased
evolutionary potential and ability to cope with environmental change,
random fluctuations in population size and sex ratio, and catastrophes
such as hurricanes. Unoccupied areas that still contain the primary
constituent elements are needed for recovery to allow the number of
elepaio to increase. (Also see comment 2 and summary of reviewer's
comments).
Since the proposed rule was published we visited the area southeast
of Puu Pane with Army biologists, and we agree with the Army that it is
marginal habitat for the elepaio and should not have been included in
the proposed designation. Much of this area consists of exposed ridges
and steep slopes that support dry shrubland, and most of the remainder
is dominated by Eucalyptus robusta, an alien tree that is not favored
by elepaio. The small forested areas in the dry gulches southeast of
Puu Pane could support at most a few pairs of elepaio, and they are
isolated from other forested areas and would not serve as habitat
stepping stones between other subpopulations. In this final rule we
removed 48 ha (119 ac) from the proposed rule that should not be
designated as critical habitat.
(6) Comment: The U.S. Navy requested that lands in NAVMAG Pearl
Harbor Lualualei Branch be excluded from the critical habitat
designation because existing protections and management are sufficient,
thereby resulting in their lands not requiring special management or
protection and not meeting the definition of critical habitat under
Section 3(5)(A) of the Act. The Navy also stated that it has prepared a
full management strategy for the Oahu elepaio in the pending INRMP for
NAVMAG Pearl Harbor Lualualei Branch, which includes an evaluation of
population distribution, quality and quantity of nesting habitat,
threats, and management needs for recovery. The Navy maintains that the
management strategy in the INRMP provides adequate management and
protection and should exempt NAVMAG Pearl Harbor Lualualei Branch from
critical habitat.
Service Response: The primary threats to the elepaio, predation by
alien rats and diseases carried by alien mosquitoes, have not been
addressed on Navy lands. The Navy conducts predator control in a small
wetland in Lualualei to protect endangered waterbirds, but this site is
several kilometers from elepaio critical habitat and provides no
benefit to elepaio. After reviewing the draft INRMP for NAVMAG Pearl
Harbor Lualualei Branch, we have determined that it does not provide
for adequate protection or management for the Oahu elepaio. The draft
INRMP does not include a management strategy for the Oahu elepaio and
does not provide an evaluation of population distribution, quality and
quantity of nesting habitat, threats, and management needs for
recovery.
We agree that INRMPs can provide adequate management and protection
of military lands such that they no longer require critical habitat
designation. To determine if an INRMP provides

[[Page 63768]]

adequate management or protection we consider: (1) Whether there is a
current plan specifying the management actions and whether such actions
provide sufficient conservation benefit to the species; (2) whether the
plan provides assurances that the conservation management strategies
will be implemented; and (3) whether the plan provides assurances that
the conservation management strategies will be effective, i.e., provide
for periodic monitoring and revisions as necessary. If all of these
criteria are met, then under current Service policy the lands covered
under the plan would no longer meet the definition of critical habitat.
(7) Comment: The U.S. Army stated that current management actions
for the Oahu elepaio at Schofield Barracks and Makua Military
Reservation and existing wildfire management programs afford adequate
protection for the elepaio, suggesting these areas should be excluded
from critical habitat.
Service Response: We agree that the Army has conducted some
valuable management for the elepaio, but thus far only a small fraction
of elepaio on Army lands have benefited from management activities such
as rodent control, and the threat to elepaio at Schofield Barracks of
wildfires resulting from training activities has not been managed
adequately. Larger scale rodent control and improved fire management
will be necessary to meet the long-term conservation needs of the
elepaio. We have determined that current management does not adequately
address the conservation needs of the Oahu elepaio, and that Army lands
cannot be excluded from critical habitat under Section 3(5)(A)(i)(II).
(8) Comment: Before final designation, the Service should ground-
truth all suitable habitat and the known range of elepaio to maximize
the area available for recovery.
Service Response: The critical habitat designation was based on the
best information available at the time, and included data from numerous
surveys by university, State, military, and private biologists. We
recognize that more information on habitat suitability and distribution
of the elepaio would be useful, and the Service recently ground-truthed
several areas. If new scientific information shows that there is a need
to add or remove lands from the critical habitat, an amendment or
correction to the designation could be considered.

Issue 2: Policy and Regulations

(9) Comment: Efforts by the Service to protect elepaio habitat must
include incentives and support for landowners to manage habitat.
Several commenters mentioned that they have ongoing management for
elepaio, and four commenters urged the Service to provide financial and
technical support to private landowners to implement additional
voluntary predator control and habitat management.
Service Response: The Service agrees there is a need to provide
financial and technical support to private landowners who would like to
help recover listed species. Since the proposed rule was published, the
Partners for Fish and Wildlife Program of the Service has provided a
private land manager with money to manage elepaio habitat through the
Hawaii Community-Based Endangered Species Conservation Initiative. The
Service also is working, in collaboration with the State Department of
Land and Natural Resources, to design potential Safe Harbor Agreements
with private landowners under section 10 of the Act, in which the
Service would provide technical support and up to 75 percent of the
cost of managing habitat for elepaio recovery. One Safe Harbor
Agreement is approved and funded, and there is potential to develop
more. (see also comments 13 and 22).
(10) Comment: Several commenters questioned whether critical
habitat designation would provide any benefit to the elepaio,
particularly on privately owned lands with no Federal nexus. One
commenter requested that, since there are no discernible benefits to
including private lands in the designation, such lands be excluded
under Section 4(b)(2) of the Act. Another commenter stated that the
majority of land proposed as critical habitat already is protected by
State conservation zoning, Natural Area Reserves, Forest Reserves, and
watershed partnerships, and that critical habitat designation is not
necessary and would duplicate existing zoning and land use protection.
Service Response: It is true that most (99.6%) of the critical
habitat for the Oahu elepaio is in areas that already receive
protection from State regulations, zoning restrictions, private
preserves, and partnerships, but the critical habitat designation
provides an additional type of protection that only affects actions
carried out, funded, or permitted by the Federal Government. If actions
with a Federal nexus occur on State, County, or private lands, then
critical habitat designation will ensure that those actions do not
adversely modify the habitat elements important to the elepaio. Over
39,000 acres of the critical habitat are in the Resource Subzone of the
State Conservation District, which allows such actions as commercial
forestry, mining, and extraction of any material or natural resource.
An additional 1,136 acres are in the General Subzone of the
Conservation District, which in addition to the activities listed
above, allows farming, nurseries, orchards, and grazing. Critical
habitat designation ensures that any of these actions on State
conservation lands that involve a Federal nexus will not adversely
modify critical habitat. Because State Conservation zoning already
places limitations on land use, we expect very few if any economic
impacts from the designation of critical habitat.
Critical habitat designation provides educational as well as
regulatory benefits. Attention brought by critical habitat designation
can help educate the public about the conservation needs of a species,
aid landowners and managers in focusing and concerting management
efforts, and can even result in increased funding opportunities (see
response to comment 9).
(11) Comment: Critical habitat designation will result in expensive
additional land management requirements for private landowners. There
is no benefit to designating critical habitat on the property of a
small landowner if they do not have the resources to manage the area
and government agencies do not have access for management.
Service Response: Critical habitat designation does not require any
additional management to be done by private landowners, State agencies,
or the Federal Government. Critical habitat designation does not create
a wilderness area or preserve; it does not require fencing, control of
rodents, ungulates, or weeds; and it does not close an area to hunting
or hiking. It requires only that actions carried out, funded, or
permitted by the Federal Government must not destroy or adversely
modify critical habitat. The decision to manage land to control threats
to the elepaio, such as nest predation or disease, is separate from
critical habitat designation and at the discretion of the landowner.
(12) Comment: Designation of critical habitat may discourage
private landowners from entering cooperative management programs such
as watershed partnerships, particularly if a landowner is concerned or
uncertain about Federal regulations.
Service Response: The goals of watershed partnerships are
compatible with the conservation needs of the Oahu elepaio and with the
objectives of critical habitat. There is no reason that critical
habitat designation should discourage private landowners from entering
watershed partnerships. We

[[Page 63769]]

welcome the opportunity to discuss concerns or uncertainties about
critical habitat regulations with any such partnership. Our
Partnerships Program is actively involved in cooperative management
programs, such as watershed partnerships, and helps guide and fund
partnerships toward good land stewardship practices.
(13) Comment: Money spent on this and future regulatory processes
to enforce critical habitat could be much better spent on management
activities. More management, not more regulations, can best address the
decline of the elepaio.
Service Response: We agree that greater management of threats such
as predation and disease is needed for recovery of the elepaio, but
habitat protection also is essential to the recovery of the elepaio,
and critical habitat is a method of habitat protection. The Service
provides financial and technical support for several elepaio recovery
actions, and critical habitat designation can lead to increased funding
opportunities for recovery actions (see comments 9 and 22).
(14) Comment: One commenter questioned the Service's policy not to
include existing structures within the boundaries of the mapped
critical habitat units because doing so could create confusion as to
whether a given area contains the primary constituent elements and thus
whether section 7 consultation is necessary.
Service Response: Within the critical habitat units there are
numerous small structures that do not contain the primary constituent
elements required by the elepaio, such as buildings, roads, aqueducts,
water tanks, and antennas. Including such structures in the critical
habitat designation would imply that they are required by the elepaio
and therefore must be present for the elepaio to survive, which is not
true and easily could be misinterpreted. In the text of the proposed
rule we therefore stated that any such features within the critical
habitat units are not included in the critical habitat designation. The
alternative to describing such features in the text is to depict each
one as a ``hole'' in the critical habitat. However, these structures
are too small to be visible on a map and it was impossible to map every
existing structure that does not contain the primary constituent
elements. A few structures, such as the H-3 freeway and the Palehua
Road, are large enough to be mapped.
(15) Comment: One commenter objected to the suggestion in the
proposed rule that habitat cannot be ``critical'' unless it contains
the primary constituent elements, and stated that for unoccupied areas
the only relevant consideration is whether the area is essential for
the conservation of the species. Some unoccupied areas may be degraded,
but that does not mean they do not require protection from further
adverse modification for the elepaio to have a chance at recovery.
Service Response: We recognize that areas outside the boundaries of
the critical habitat may be suitable for elepaio recovery, and that it
is possible, although perhaps expensive, to restore degraded areas that
do not currently contain the primary constituent elements. The focus of
critical habitat, however, is the area essential to the conservation of
the species. For some species there may not be sufficient land
available that contains the primary constituent elements, and it may be
necessary to restore additional habitat in order to provide for the
conservation of the species. In the case of the Oahu elepaio, we
believe that the designated critical habitat does contain the areas
essential to the conservation of the species, and that these lands
alone are sufficient to provide for its recovery. This does not mean
that areas outside the designated critical habitat units are not
suitable and cannot be used for elepaio recovery, nor does it imply
that they should not be protected or restored. It simply reflects our
conclusions that sufficient lands are available that already contain
the primary constituent elements.
(16) Comment: One commenter urged the Service not to exclude any
areas containing the primary constituent elements, including areas
covered by Conservation Agreements and Safe Harbor Agreements, that are
being managed to address the conservation needs of the species and
therefore allegedly do not meet the definition of critical habitat in
Section 3(5)(A) of the Act because they do not require special
management or protection.
Service Response: No areas were excluded from the designation on
the basis that current management was adequate and special management
or protection was not required. Currently there are no Conservation
Agreements or Safe Harbor Agreements that include the Oahu elepaio.
(17) Comment: The inability to use flares and tracer ammunition at
Schofield Barracks would require that the Army conduct all such
training elsewhere, which would have tremendous economic impact and
would adversely affect training readiness.
Service Response: Designation of critical habitat for the Oahu
elepaio on Army lands would not necessarily prohibit any training
activities or the use of any type of ammunition at Schofield Barracks.
The critical habitat does not contain any lands used for training, but
an impact area for live-fire training is adjacent to critical habitat.
The primary potential effect on elepaio from military training at
Schofield Barracks is the risk of wildfires that cross the firebreak
road and burn forested areas comprising the critical habitat. If an
adequate fire management plan is implemented and fires that affect
critical habitat are controlled, there should be no effect on elepaio
from military training and no changes needed to the types of training
conducted at Schofield Barracks.
Although it would be possible, but more expensive, to conduct
training with flares and tracer ammunition at an alternate site, we
believe that moving such training is not necessary if the risk of fires
resulting from use of such munitions at Schofield Barracks is
adequately controlled. A detailed fire management plan has been
prepared for nearby Makua Military Installation, but the draft INRMP
for Schofield Barracks does not contain a full fire management plan and
currently there are no specific procedures to control wildfires at
Schofield Barracks. Because most of the critical habitat at Schofield
Barracks is occupied by elepaio, the effect of military training on
elepaio would require consultation under Section 7 of the Act even if
critical habitat were not designated. Since the area is occupied by
elepaio, consultations will point to a need for a fire management plan
regardless of any CH designation, which, if adequately done, will moot
any impact to the Army from the critical habitat designation. The
Service expects to work with the Army on the development of a sound
fire management plan for Schofield Barracks and on minimizing or
mitigating potential impacts of training on the elepaio in ways that
will not compromise training readiness.

Issue 3: Economic Issues

(18) Comment: Several commenters stated that critical habitat
designation will have an adverse economic impact to private landowners,
and requested that a particular area be excluded from designation under
Section 4(b)(2) because costs outweigh benefits. One commenter pointed
out that the draft economic analysis found that the area along Palehua
Road might experience a large economic impact, and that exclusion of
the area would not compromise conservation objectives, would maximize
efficiency of private land use for commercial purposes, and

[[Page 63770]]

would not result in extinction of the species.
Service Response: Critical habitat designation would not affect any
uses of private land unless actions on the land were carried out,
funded, or somehow permitted by the Federal Government. The economic
analysis showed that the economic impact of the proposed critical
habitat designation would be minimal in most areas, and that only a few
locations potentially could experience a moderate impact. Some of the
areas where the economic impact might be moderate also are of high
value to the elepaio, and we feel that the benefits of inclusion
outweigh the benefits of exclusion.
Since publication of the proposed rule, we have re-evaluated the
Palehua Road area and decided that for biological reasons it should not
have been included in the proposed designation, and we removed it from
the final designation (see Summary of Changes From the Proposed Rule).
(19) Comment: One commenter expressed concern about the impact of
critical habitat designation on agricultural resources, particularly
the water catchment and distribution facilities of the Waiahole Ditch
(which is within the boundaries of Unit 3), and recommended that a
corridor be established around the ditch excluding it from critical
habitat. This ditch is the sole source of irrigation water for several
thousand acres of agricultural land in south-central Oahu, and it will
require periodic maintenance.
Service Response: Existing features and structures within the
boundaries of the critical habitat units, such as the Waiahole Ditch,
are not included in the critical habitat because they do not contain
the primary constituent elements needed by the elepaio. Maintenance of
these features and structures would only be affected by the critical
habitat designation and would only require section 7 consultation if
the maintenance is federally funded or permitted and if the action
affected the species or the primary constituent elements in adjacent
areas of critical habitat. It was not practical to create a corridor in
the critical habitat around the Waiahole Ditch because the ditch is too
small.
(20) Comment: One commenter objected to the draft Economic Analysis
because it does not meet the requirements of the Tenth Circuit Court's
opinion in New Mexico Cattle Growers Association v. U.S. Fish and
Wildlife Service, No. 00-2050, May 11, 2001, which requires a full
analysis of all economic impacts of a critical habitat designation,
regardless of whether those impacts are attributable co-extensively to
other causes.
Service Response: On May 11, 2001, the U.S. Court of Appeals for
the Tenth Circuit issued a ruling that addressed the analytical
approach used by the Service to estimate the economic impacts
associated with the critical habitat designation for the southwestern
willow flycatcher. New Mexico Cattle Growers Association v. U.S. Fish
and Wildlife Service, 248 F.3d 1277 (10th Cir. 2001). Specifically, the
court rejected the approach used by the Service to define and
characterize baseline conditions. Defining the baseline is a critical
step in an economic analysis, as the baseline in turn identifies the
type and magnitude of incremental impacts that are attributed to the
policy or change under scrutiny. In the flycatcher analysis, the
Service defined baseline conditions to include the effects associated
with the listing of the flycatcher and presented only the incremental
effects of the rule.
We have revised the economic analysis for the Oahu elepaio through
the Addendum to specifically address the Tenth Circuit Court's
instructions. Specifically, the economic analysis quantifies, to the
extent possible, the effects of section 7 in its entirety on current
and planned activities that are reasonably expected to occur in the
near future within proposed critical habitat. For these reasons we
believe the economic analysis of the critical habitat designation for
the Oahu elepaio meets the requirements of the Tenth Circuit Court's
opinion.

Issue 4: Other Relevant Issues

(21) Comment: The Service and other agencies should work together
in a cooperative fashion to benefit endangered species. The U.S. Navy
commented that, although this critical habitat designation was
generated as a result of litigation, that fact should not limit the
ability of the Navy and the Service to work together. A State agency
commended the Service for the process used in developing the critical
habitat designation for the Oahu elepaio, and commented that State and
Service biologists have worked together to identify and manage
important habitat for the Oahu elepaio.
Service Response: We fully agree, and we expect to continue working
closely with all Federal and State agencies and private landowners and
managers in developing effective management for the elepaio and other
endangered species. We see no reason that this designation, or any
other action that results from litigation, should affect existing
positive working relationships.
(22) Comment: Current management efforts fall short of meeting the
conservation needs of the Oahu elepaio. Recovery of the elepaio will
require larger, landscape-scale management, more funding, and possibly
different methods, such as aerial broadcast of rodenticide to control
rodents.
Service Response: We agree that current management is not
sufficient and that recovery of the elepaio will require not just
habitat protection but large-scale active habitat management. Both the
proposed rule and this final rule clearly state that additional
management will be necessary for recovery of the elepaio. The Service
has provided technical assistance with rodent control to the U.S. Army,
the U.S. Navy, the State, and private land managers, and financial
support for rodent control to the State and private managers. We also
are actively involved in obtaining EPA registration for aerial
broadcast of rodenticide, which will be an important tool in reducing
the threat from nest predation by rats.
(23) Comment: The critical habitat designation for the Oahu elepaio
directly conflicts with approved Federal recovery plans for 12
endangered plant species, which identify control of introduced plant
species as a needed recovery action. The proposed rule identifies the
primary constituent elements for the elepaio as wet, mesic, and dry
forest composed of both native and introduced plant species.
Preservation of a native forest ecosystem should be emphasized and
protected over a mixed or introduced forest. Mixed or introduced forest
should be excluded as a primary constituent element of elepaio habitat.
Service Response: Elepaio are generalized in habitat use and are
able to occupy a variety of forest types composed of many different
plants, including native and introduced species. Many areas currently
occupied by elepaio contain mostly introduced plants, but this does not
mean that elepaio must have those introduced plants to survive. The
structure of the forest is more important to elepaio than the species
of plants present. The plant species listed in the description of
primary constituent elements are examples of common plants in areas
suitable for elepaio; it is not necessary for all those species to be
present. The critical habitat designation for the Oahu elepaio does not
require or advocate the preservation of introduced forests over native
forests. Recovery actions for endangered native plant species that
involve removal of alien plants do not conflict with recovery of the
elepaio, as long as the alien plant species are

[[Page 63771]]

replaced with native plant species and the vegetative cover is retained
in the long term. To avoid this misconception in the final rule, the
description of the primary constituent elements has been changed to
wet, mesic, and dry forest composed of native or introduced plant
species.
(24) Comment: Several commenters supported the critical habitat
designation for the Oahu elepaio, citing the species cultural
significance to the Hawaiian people, its uniqueness and value to the
Hawaiian ecosystem, its intangible existence value, and the benefits it
provides to human communities that cannot be measured.
Service Response: We recognize the cultural and natural
significance of the Oahu elepaio. The elepaio is familiar to many
people in Hawaii, and it has served as a symbol not only for the
natural environment, but also for conservation and collaborative
management. In addition to being a guardian spirit of Hawaiian canoe
makers, the elepaio was prominent in legends and folklore. Elepaio are
often the first birds to sing in the morning, and their songs were
thought to warn spirits of the night that their work must end because
dawn was approaching.
(25) Comment: Hunting for various mammals and game birds currently
is authorized in portions of all five critical habitat units. Because
nothing in the proposed rule indicates there will be a curtailment or
cessation of hunting, it must be assumed that current authorized
hunting programs will continue. A well-designed hunting program is a
vital element of game management and overall conservation. If hunting
is considered to have negative impacts, or a hunting program is
considered for expansion or improvement, hunter groups should be
involved in any discussions or planning.
Service Response: Alteration of native ecosystems by feral mammals
is not one of the primary threats to the Oahu elepaio, and no changes
in authorized hunting programs are expected as a result of critical
habitat designation for the Oahu elepaio. The Service agrees that in
many circumstances a well-designed hunting program can be an important
component in the conservation of native ecosystems in Hawaii by helping
to control excessive damage caused by large populations of feral
mammals. Should a change in authorized hunting programs result from
this critical habitat designation, the Service would work with State
agencies and hunting groups to address any concerns.

Summary of Changes From the Proposed Rule

In the proposed rule we attempted to use Hawaiian language
diacritical marks in the spelling of Hawaiian words, but there were
numerous conversion errors and the marks were not printed correctly. We
published a correction to the proposed rule (66 FR 46428) in which we
said we would ensure that the marks are either used correctly or
eliminated. In this final rule we eliminated the diacritical marks
because we cannot ensure they will be printed properly in the short
time before the court-ordered publication deadline. We recognize the
importance of using the marks to accurately portray the pronunciation
of Hawaiian words and we regret not being able to use them, but we feel
that printing the marks incorrectly would be worse than not using them.
Based partly on public comments received on the proposed
determination of critical habitat for the Oahu elepaio and partly on
additional biological examination of several areas, we re-evaluated our
proposed designation of critical habitat for the Oahu elepaio. This
resulted in the removal for biological reasons of five relatively small
areas totaling 207 ha (513 ac) in this final determination, including:
(1) 48 ha (119 ac) in Unit 1 on Schofield Barracks West Range; (2) 31
ha (77 ac) in Unit 2 around the Palehua-Mauna Kapu road; (3) 63 ha (156
ac) in Unit 2 in Nanakuli Valley; (4) 49 ha (121 ac) in Unit 3 in
Keaiwa Heiau State Recreation Area; and (5) 16 ha (40 ac) in Unit 5 in
and around Lyon Arboretum in Manoa Valley. These areas comprise less
than 1 percent of the area originally proposed. The designation is
based on the distribution of lands needed to support a viable
population, not on the amount of land required to support a certain
number of birds. The lands in question were all located on the edge of
one of the habitat units and were unlikely to serve as habitat stepping
stones between other forested areas. A more detailed discussion and
justification for removal of each of these areas is provided below.
On Schofield Barracks West Range we removed 48 ha (119 ac) in the
area southeast of Puu Pane, which was the easternmost portion of Unit
1, because it is less suitable for elepaio than we realized. This area
consists largely of exposed ridges, steep dry slopes that support dry
shrub land, and open forest dominated by Eucalyptus robusta, an
introduced tree not favored by elepaio. The gulches contain small areas
of more mesic forest that could support a few pairs of elepaio, but
these areas are isolated from other suitable forest and would not
provide habitat stepping stones between other elepaio subpopulations.
As a result of the economic analysis and information provided to us
during the public comment period on the proposed rule, we learned that
the area along the Palehua Road at the southern edge of Unit 2 contains
a large concentration of telecommunication antennas and associated
facilities, several houses, and other structures. The forest has been
largely removed due to the extensive development, and the existing
vegetation is dominated by ironwood (Casuarina spp.) and Eucalyptus
robusta, introduced trees that are not favored by elepaio. The existing
structures in this area were not included in the proposed designation
because they are developed features that do not contain the primary
constituent elements required by elepaio, but to make this more
explicit and clear, we removed a total of 31 ha (77 ac) in a corridor
roughly 200 meters wide centered on the road between Palehua and Mauna
Kapu. Of this area, 24 ha (60 ac) is privately owned and 7 ha (17 ac)
is owned by the State.
In Nanakuli Valley we removed 63 ha (156 ac) from the southwest
corner of Unit 2 because it is does not contain forest with the primary
constituent elements needed by elepaio and is unlikely to be useful for
dispersal. This valley is much drier than we previously realized and
contains mostly dry shrubland and grassland. Portions of the valley are
very steep and contain almost no vegetation. This area is on the very
edge of the potential elepaio distribution and is unlikely to serve as
a link to other subpopulations because of its location.
In Unit 3, we removed 49 ha (121 ac) that contained developed areas
of the Keaiwa Heiau State Recreation Area, including roads, parking
areas, campsites, picnic areas, and restrooms. These are developed
features and do not contain the primary constituent elements needed by
the elepaio, and as such were not included in the proposed critical
habitat. To clarify this, in this final rule we have moved the boundary
so it does not include the developed section of the recreation area,
but the higher, undeveloped section of the recreation area is retained.
Finally, we removed 16 ha (40 ac) on the edge of Unit 5 that
consisted of landscaped areas in and near Lyon Arboretum in Manoa
Valley. The landscaped gardens in Lyon Arboretum are developed features
that do not contain the primary constituent

[[Page 63772]]

elements needed by the elepaio, and as such were not included in the
proposed designation. To clarify this, in this final rule we moved the
boundary so it does not include the lower, developed section of the
arboretum, but it still contains the higher, undeveloped section.

Economic Analysis

Section 4(b)(2) of the Act requires us to designate critical
habitat on the basis of the best scientific and commercial data
available and to consider the economic and other relevant impacts of
designating a particular area as critical habitat. We may exclude areas
from critical habitat upon a determination that the benefits of such
exclusions outweigh the benefits of specifying such areas as critical
habitat, but we cannot exclude such areas from critical habitat if the
exclusion will result in the extinction of the species.
In the addendum, the methodology was modified to more fully
describe and explore the baseline conditions attributable to the
listing of the elepaio. This change in methodology is consistent with
the planned modification discussed in the Foreword to the DEA, and is
consistent with the ruling of the Tenth Circuit Court concerning the
analytical approach used by the Service to estimate economic impacts.
The results of the analysis cover economic impacts that are
attributable to (1) both the listing of the elepaio as an endangered
species and its critical habitat designation and (2) just the critical
habitat designation. In general, cost and benefit estimates were not
developed for projects and activities in cases where: (1) The economic
impacts attributable to both the listing and the critical habitat are
expected to be small, (2) the probability of the impacts occurring is
small, (3) the impacts are highly speculative, or (4) data needed to
quantify the impacts are not reasonably available.
An analysis of the economic impacts of critical habitat designation
for the Oahu elepaio was prepared by Decision Analysts Hawaii,
Incorporated, under subcontract to the Service through Industrial
Economics, Incorporated, and was made available for public review from
August 6 through September 6, 2001 (66 FR 40960). The final analysis,
which reviewed and incorporated public comments, concluded that no
significant economic impacts are expected from critical habitat
designation. Few new developments, land uses, or other activities are
expected in the critical habitat units because of the mountainous
terrain, poor access, and existing conservation zoning. Most current
and planned projects and land uses in the critical habitat areas have
no Federal involvement, and thus would not be affected by critical
habitat designation. Most activities with a Federal nexus involve the
operation and management of existing facilities, and also would not be
affected by critical habitat designation. The primary economic impact
on most activities would be a small cost associated with an increased
number of section 7 consultations and an increased length of time
required for consultations resulting from critical habitat. There may
be a modest economic impact of critical habitat designation on lands
owned or controlled by the Department of Defense.
A copy of the final economic analysis and supporting documents are
included in our administrative record and may be obtained by contacting
the Pacific Islands Field Office (see ADDRESSES section). Copies of the
final economic analysis also are available on the Internet at http://
pacificislands.fws.gov/wesa/endspindex.html.

Required Determinations

Regulatory Planning and Review

In accordance with Executive Order 12866, this document has been
reviewed by the Office of Management and Budget (OMB). OMB makes the
final determination of significance under Executive Order 12866.
(a) This rule will not have an annual economic effect of $100
million or adversely affect an economic sector, productivity, jobs, the
environment, or other units of government. A cost-benefit and economic
analysis therefore is not required. The Oahu elepaio was listed as an
endangered species in April 2000. In fiscal years 2000 through 2001 we
have conducted two informal section 7 consultations with other Federal
agencies to ensure that their actions would not jeopardize the
continued existence of the Oahu elepaio. We have not issued any section
10(a)(1)(B) incidental take permits for the elepaio.
Under the Act, critical habitat may not be adversely modified by a
Federal agency action; critical habitat does not impose any
restrictions on non-Federal persons or agencies unless they are
conducting activities funded or otherwise sponsored, authorized, or
permitted by a Federal agency. Section 7 requires Federal agencies to
ensure that they do not jeopardize the continued existence of this
species. Based upon our experience with this species and its needs, we
conclude that any Federal action or authorized action that could
potentially cause adverse modification of proposed critical habitat
would currently be considered as ``jeopardy'' under the Act in areas
occupied by the species. Accordingly, the designation of currently
occupied areas as critical habitat does not have any impacts on what
actions may or may not be conducted by Federal agencies or non-Federal
persons that receive Federal authorization or funding beyond the
existing impacts. The designation of areas as critical habitat where
section 7 consultations would not have occurred but for the critical
habitat designation may have impacts on what actions may or may not be
conducted by Federal agencies or non-Federal persons who receive
Federal authorization or funding that are not attributable to the
species listing. These impacts were evaluated in our economic analysis
(under section 4 of the Act; see Economic Analysis section of this
rule). Non-Federal persons or agencies that do not have Federal
involvement in their actions are not restricted by the designation of
critical habitat.
(b) This rule will not create inconsistencies with other agencies'
actions. As discussed above, Federal agencies have been required to
ensure that their actions do not jeopardize the continued existence of
the Oahu elepaio since its listing in April 2000. We evaluated the
impact of designating areas where section 7 consultations would not
have occurred but for the critical habitat designation in our economic
analysis (see Economic Analysis section of this rule). The prohibition
against adverse modification of critical habitat is not expected to
impose any additional restrictions to those that currently exist on
currently occupied lands and will not create inconsistencies with other
agencies' actions on unoccupied lands. Specifically, construction and
land management activities carried out by the Service on the newly
created Oahu Forest National Wildlife Refuge are expected to benefit
the elepaio and other listed species in the long term, and those
actions therefore will not be affected by this designation. Storage of
munitions by the U.S. Navy at NAVMAG Pearl Harbor Lualualei Branch is
not expected to be affected by this designation because the lands used
for munitions storage and those designated as critical habitat do not
overlap, and storage of munitions on adjacent lands does not affect the
elepaio. Training by the U.S. Army at Makua Military Reservation and
Schofield Barracks is not expected to be affected by this designation
because

[[Page 63773]]

wildfires caused by training exercises are the only means by which
training may affect the elepaio, and the Army has implemented a
detailed fire management plan for Makua and soon plans to implement a
fire management plan for Schofield Barracks.
(c) This rule will not materially affect entitlements, grants, user
fees, loan programs, or the rights and obligations of their recipients.
Federal agencies are currently required to ensure that their activities
do not jeopardize the continued existence of a listed species, and, as
discussed above, we do not anticipate that the adverse modification
prohibition resulting from critical habitat designation will result in
additional restrictions.
(d) OMB has determined that this rule raises novel legal or policy
issues. Therefore, this rule is significant under E.O. 12866, and, as a
result, has undergone OMB review.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Act (SBREFA) of
1996), whenever an agency is required to publish a notice of rulemaking
for any proposed or final rule, it must prepare and make available for
public comment a regulatory flexibility analysis that describes the
effects of the rule on small entities (i.e., small businesses, small
organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of the agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. The SBREFA amended the Regulatory
Flexibility Act to require Federal agencies to provide a statement of
the factual basis for certifying that a rule will not have a
significant economic effect on a substantial number of small entities.
The SBREFA also amended the Regulatory Flexibility Act to require a
certification statement. In this rule, we are certifying that the
critical habitat designation for the Oahu elepaio will not have a
significant effect on a substantial number of small entities. The
following discussion explains our rationale.
Small entities include small organizations, such as independent
non-profit organizations, small governmental jurisdictions, including
school boards and city and town governments that serve fewer than
50,000 residents, as well as small businesses. Small businesses include
manufacturing and mining concerns with fewer than 500 employees,
wholesale trade entities with fewer than 100 employees, retail and
service businesses with less than $5 million in annual sales, general
and heavy construction businesses with less than $27.5 million in
annual business, special trade contractors doing less than $11.5
million in annual business, and agricultural businesses with annual
sales less than $750,000. To determine if potential economic impacts to
these small entities are significant, we consider the types of
activities that might trigger regulatory impacts under this rule as
well as the types of project modifications that may result. In general,
the term significant economic impact is meant to apply to a typical
small business firm's business operations.
To determine if the rule would affect a substantial number of small
entities, we consider the number of small entities affected within
particular types of economic activities (e.g., housing development,
grazing, oil and gas production, timber harvesting, etc.). We apply the
``substantial number'' test individually to each industry to determine
if certification is appropriate. In some circumstances, especially with
critical habitat designations of limited extent, we may aggregate
across all industries and consider whether the total number of small
entities affected is substantial. In estimating the numbers of small
entities potentially affected, we also consider whether their
activities have any Federal involvement. Designation of critical
habitat only affects activities conducted, funded, or permitted by
Federal agencies. Some kinds of activities are unlikely to have any
Federal involvement and so will not be affected by critical habitat
designation.
In areas where the species is present, Federal agencies already are
required to consult with us under section 7 of the Act on activities
that they fund, permit, or implement that may affect the Oahu elepaio.
Federal agencies also must consult with us if their activities may
affect critical habitat. Designation of critical habitat therefore
could result in an additional economic impact on small entities due to
the requirement to reinitiate consultation for ongoing Federal
activities. However, since the Oahu elepaio was proposed for listing in
October 1998, we have conducted only two informal consultations and one
formal consultation, involving the Oahu Forest National Wildlife Refuge
and the U.S. Army. As a result, the requirement to reinitiate
consultation for ongoing projects will not affect any small entities.
In areas where the species clearly is not present, designation of
critical habitat could trigger additional review of Federal activities
under section 7 of the Act. We are aware of relatively few activities
in the critical habitat for the Oahu elepaio that have Federal
involvement and thus would require consultation or reinitiation of
already-completed consultations for ongoing projects. Moreover, no
activities currently undertaken by small entities in the critical
habitat units have Federal involvement, nor, for the reasons explained
herein, would Federal involvement be expected in the future, and thus
we do not anticipate that this designation of critical habitat will
result in any additional regulatory impacts to small entities.
Current activities with Federal involvement that will require
consultation are; training by the U.S. Army; storage of munitions by
the U.S. Navy; Federally funded land management and wildlife
restoration and game-hunting projects; and improvements to
communications facilities that require approval from the FCC. We are
not aware of any additional projects that have been proposed, but
potential future activities that might have Federal involvement
include; maintenance of water diversion and flood control facilities
that may require authorization from the Army Corps of Engineers under
Section 404 of the Clean Water Act; watershed and restoration
management projects sponsored by NRCS; projects to improve access and
management for the Oahu Forest National Wildlife Refuge. The
requirement in section 7(a)(2) to avoid jeopardizing listed species and
destroying or adversely modifying designated critical habitat may
result in Federal agencies requiring certain modifications to proposed
projects.
The five critical habitat units identified in this rule consist of
15, 6, 37, 12, and 43 parcels, of which 0, 1, 16, 3, and 12 parcels are
owned by 0, 1, 11, 3, and 9 different small entities, respectively. The
majority of parcels are owned by the Federal government, the State of
Hawaii, and the City and County of Honolulu, which are not small
entities.
Of the lands designated as critical habitat for the Oahu elepaio,
99.6% are zoned for conservation. Projected uses of these lands consist
of; recreation (hiking, camping, hunting, and fishing); protection of
natural and cultural resources, including threatened and endangered
species; watershed protection and management; ecotourism; and in
certain areas, harvesting of natural resources under an approved
management plan. As discussed in the economic analysis,

[[Page 63774]]

most of the critical habitat lands are in mountainous areas where
access is difficult due to the steep terrain, and these lands are not
suited to development or agriculture. Because use of the vast majority
of lands designated as critical habitat already is limited by existing
zoning regulations and mountainous terrain with difficult access, we do
not anticipate a significant decline in property values as a result of
this critical habitat designation.
Unit 5 includes a portion of one parcel in Wailupe Valley that is
zoned for urban use and is occupied by elepaio. Residential development
of this parcel was considered before 1970, but was abandoned due to the
unstable nature of the soil in this area. The parcel recently was
purchased by the City and County of Honolulu, and future development is
unlikely. Unit 2 includes one parcel owned by the U.S. Navy that is
partially zoned for agriculture, but this area is very dry and access
is restricted by the Naval installation, making agriculture unlikely.
In general, two different mechanisms in section 7 consultations
could lead to additional regulatory requirements. First, if we
conclude, in a biological opinion, that a proposed action is likely to
jeopardize the continued existence of a species or adversely modify its
critical habitat, we can offer ``reasonable and prudent alternatives.''
Reasonable and prudent alternatives are alternative actions that can be
implemented in a manner consistent with the scope of the Federal
agency's legal authority and jurisdiction, that are economically and
technologically feasible, and that would avoid jeopardizing the
continued existence of listed species or resulting in adverse
modification of critical habitat. A Federal agency and an applicant may
elect to implement a reasonable and prudent alternative associated with
a biological opinion that has found jeopardy or adverse modification of
critical habitat. An agency or applicant could alternatively choose to
seek an exemption from the requirements of the Act or proceed without
implementing the reasonable and prudent alternative. However, unless an
exemption were obtained, the Federal agency or applicant would be at
risk of violating section 7(a)(2) of the Act if it chose to proceed
without implementing the reasonable and prudent alternatives. Secondly,
if we find that a proposed action is not likely to jeopardize the
continued existence of a listed animal species, we may identify
reasonable and prudent measures designed to minimize the amount or
extent of take and require the Federal agency or applicant to implement
such measures through non-discretionary terms and conditions. We may
also identify discretionary conservation recommendations designed to
minimize or avoid the adverse effects of a proposed action on listed
species or critical habitat, help implement recovery plans, or to
develop information that could contribute to the recovery of the
species.
Based on our experience with section 7 consultations for all listed
species, virtually all projects-including those that, in their initial
proposed form, would result in jeopardy or adverse modification
determinations in section 7 consultations-can be implemented
successfully with, at most, the adoption of reasonable and prudent
alternatives. These measures, by definition, must be economically
feasible and within the scope of authority of the Federal agency
involved in the consultation. As we have a very limited consultation
history for the Oahu elepaio, we can only describe the general kinds of
actions that may be identified in future reasonable and prudent
alternatives. These are based on our understanding of the needs of the
species and the threats it faces, as described in the final listing
rule and this critical habitat designation. The kinds of actions that
may be included in future reasonable and prudent alternatives include;
conservation set-asides; management of non-native predators,
particularly black rats; management of non-native mosquitoes that carry
non-native avian diseases; restoration of degraded habitat; and regular
monitoring. These measures are not likely to result in a significant
economic impact to project proponents.
As required under section 4(b)(2) of the Act, we conducted an
analysis of the potential economic impacts of this critical habitat
designation, and that analysis was made available for public review and
comment before finalization of this designation. Based on estimates
provided in the economic analysis, the potential economic impact of
critical habitat designation for the Oahu elepaio over the next 10
years ranged from $296,000 to $1,347,000, of which the cost to small
entities ranged from $40,000 to $60,000. The high estimate of the total
potential impact includes control of alien rodents in all Army and navy
installations, which probably will not be required as a result of
critical habitat designation, and implementation of a fire management
plan at Schofield Barracks, which also is attributable to other
purposes, so the lower estimate of $296,000 is a more realistic
estimate of the impact attributable to the critical habitat
designation. The estimate of the potential impact to small entities
varied depending on the number of small entities attempting to
investigate the implications of critical habitat designation on their
land.
In summary, we have considered whether this rule would result in a
significant economic effect on a substantial number of small entities.
It would not affect a substantial number of small entities. The entire
critical habitat designation involves fewer than 120 parcels, only 32
of which are owned by 23 different small entities. All of these parcels
are zoned for conservation, and most of these parcels are located in
mountainous areas where access is limited. Future uses of these lands
are already limited, and are not expected to have Federal involvement
or result or section 7 consultations. This rule would result in project
modifications only when proposed Federal activities would destroy or
adversely modify critical habitat. While this may occur, it is not
expected frequently enough to affect a substantial number of small
entities. Even when it does occur, we do not expect it to result in a
significant economic impact, as the measures included in reasonable and
prudent alternatives must be economically feasible and consistent with
the proposed action. The kinds of measures we anticipate we would
provide can usually be implemented at very low cost. Therefore, we are
certifying that the designation of critical habitat for the Oahu
elepaio will not have a significant economic impact on a substantial
number of small entities. A regulatory flexibility analysis is not
required.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C.
804(2))

In the economic analysis, we determined whether designation of
critical habitat would cause (a) any effect on the economy of $100
million or more, (b) any increases in costs or prices for consumers,
individual industries, Federal, State, or local government agencies, or
geographic regions, or (c) any significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises. Refer to the final economic analysis for a discussion of
the effects of this determination.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
(a) This rule will not ``significantly or uniquely'' affect small
governments. A

[[Page 63775]]

Small Government Agency Plan is not required. Small governments will
only be affected to the extent that they must ensure that any programs
involving Federal funds, permits or other authorized activities will
not adversely affect the critical habitat.
(b) This rule will not produce a Federal mandate of $100 million or
greater in any year, that is, it is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act. The designation of
critical habitat imposes no obligations on State or local governments.

Executive Order 13211

On May 18, 2001, the President issued Executive Order EO 13211 on
regulations that significantly affect energy supply, distribution, and
use. Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. Although this is a
significant regulatory action under Executive Order 12866, this final
rule is not expected to significantly affect energy supplies,
distribution, or use, therefore this action is not a significant energy
action and no Statement of Energy Effects is required.

Takings

In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
designating critical habitat for the Oahu elepaio in a takings
implication assessment. The takings implications assessment concludes
that this final rule does not pose significant takings implications.

Federalism

In accordance with Executive Order 13132, the rule does not have
significant Federalism effects. A Federalism assessment is not
required. As discussed above, the designation of critical habitat in
areas currently occupied by the Oahu elepaio would have little
incremental impact on State and local governments and their activities.
The designations may have some benefit to these governments in that the
areas essential to the conservation of these species are more clearly
defined, and the primary constituent elements of the habitat necessary
to the survival of the species are identified. While this definition
and identification does not alter where and what federally sponsored
activities may occur, it may assist these local governments in long-
range planning rather than waiting for case-by-case section 7
consultation to occur.

Civil Justice Reform

In accordance with Executive Order 12988, the Department of the
Interior's Office of the Solicitor has determined that this rule does
not unduly burden the judicial system and does meet the requirements of
sections 3(a) and 3(b)(2) of the Order. We designate critical habitat
in accordance with the provisions of the Act. The proposed rule uses
standard property descriptions and identifies the primary constituent
elements within the designated areas to assist the public in
understanding the habitat needs of the Oahu elepaio.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

This rule does not contain any information collection requirements
for which Office of Management and Budget approval under the Paperwork
Reduction Act is required.

National Environmental Policy Act

We have determined that an Environmental Assessment or an
Environmental Impact Statement as defined by the National Environmental
Policy Act of 1969 need not be prepared in connection with regulations
adopted pursuant to section 4(a) of the Endangered Species Act. A
notice outlining our reason for this determination was published in the
Federal Register on October 25, 1983 (48 FR 49244). This proposed rule
does not constitute a major Federal action significantly affecting the
quality of the human environment.

Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations With Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and the Department
of the Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with federally recognized
Tribes on a government-to-government basis. The designation of critical
habitat for the Oahu elepaio does not contain any Tribal lands or lands
that we have identified as impacting Tribal trust resources.

References Cited

A complete list of all references cited in this proposed rule is
available upon request from the Pacific Islands Fish and Wildlife
Office (see ADDRESSES section).

Author

The primary author of this document is Eric A. VanderWerf, Pacific
Islands Fish and Wildlife Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and
record keeping requirements, Transportation.

Regulation Promulgation

Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations as set forth below:

PART 17--[AMENDED]

1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

2. In Sec. 17.11(h) revise the entry for ``Elepaio, Oahu'' under
``BIRDS'' to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------- population where Special
Historic range endangered or Status When listed Critical habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *
Birds

[[Page 63776]]

* * * * * * *
Elepaio, Oahu................. Chasiempis U.S.A. (HI)..... Entire E 696 17.95(b) NA
sandwichensis
ibidis
(Chasiempis
sandwichensis
gayi).

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

3. Amend Sec. 17.95(b) by adding critical habitat for the Oahu
elepaio (Chasiempis sandwichensis ibidis) in the same alphabetical
order as this species occurs in Sec. 17.11(h), to read as follows:

Sec. 17.95 Critical habitat--fish and wildlife.

* * * * *
(b) Birds.
* * * * *
Oahu elepaio (Chasiempis sandwichensis ibidis)
(1) Critical Habitat Units are depicted for the City and County of
Honolulu on the maps below.
(2) (i) Within these areas, the primary constituent elements
required by the Oahu elepaio are those habitat components that are
essential for the biological needs of foraging, sheltering, roosting,
nesting, and rearing of young. These primary constituent elements are
undeveloped wet, mesic, and dry forest habitats with a generally
continuous canopy and a dense understory and that are composed of
native and/or introduced plant species. Such forests are found in
valleys and on mountain slopes and ridges. The primary constituent
elements associated with the biological needs of dispersal and genetic
exchange are undeveloped wet or dry shrub land and wet or dry cliff
habitats composed of native and/or introduced plant species that
separate elepaio populations. Elepaio may not establish territories in
shrub or cliff habitats and may use them only transiently, but
undeveloped areas containing these habitats are important for linking
populations by providing dispersal corridors and promoting genetic
exchange among populations.
(ii) Within the forests and shrub lands providing the primary
constituent elements, plant species composition varies with rainfall,
elevation, and degree of habitat disturbance, and plant species occur
in a variety of assemblages. Common native and introduced species
within these plant assemblages include, but are not limited to, ohia
(Metrosideros polymorpha), koa (Acacia koa), papala kepau (Pisonia
umbellifera), lama (Diospyros sandwicensis), mamaki (Pipturus albidus),
kaulu (Sapindus oahuensis), hame (Antidesma platyphyllum), alaa
(Pouteria sandwicensis), aalii (Dodonaea viscosa), naupaka kuahiwi
(Scaevola spp.), pukiawe (Styphelia tameiameiae), uluhe (Dicranopteris
linearis), guava (Psidium guajava), strawberry guava (P. cattleianum),
mango (Mangifera indica), kukui (Aleurites moluccana), christmasberry
(Schinus terebinthifolius), ti (Cordyline terminalis), rose apple
(Syzygium jambos), mountain apple (S. malaccense), and Java plum (S.
cumini).
(3) Existing developed features and structures, such as buildings,
roads, aqueducts, antennas, water tanks, agricultural fields, paved
areas, lawns, and other urban landscaped areas, that do not contain one
or more of the primary constituent elements, are not included as
critical habitat.
(4) Map of critical habitat units for the Oahu elepaio follows.

[[Page 63777]]

[GRAPHIC]
[TIFF OMITTED] TR10DE01.002

(5) Unit 1 (4,454 ha; 11,005 ac)
(i) Unit 1 consists of 94 boundary points with the following
coordinates in UTM Zone 4 with the units in meters using North American
Datum of 1983 (NAD83): 588465, 2375750; 587846, 2376228; 587213,
2376416; 586946, 2376176; 586675, 2376658; 586672, 2377028; 586468,
2377154; 586672, 2377219; 586430, 2377462; 586532, 2377741; 586464,
2377863; 586261, 2377727; 585895, 2377915; 585242, 2377801; 584907,
2377864; 584433, 2377671; 584139, 2377961; 583974, 2378388; 584099,
2378414; 584016, 2378599; 584207, 2378563; 583425, 2379849; 583801,
2379814; 583831, 2380171; 584075, 2380122; 584324, 2379841; 584526,
2380031; 584181, 2381150; 584078, 2381295; 583938, 2381385; 583738,
2381388; 583402, 2381505; 583315, 2381668; 582998, 2381518; 582785,
2381368; 582566, 2381369; 582561, 2381485; 582694, 2381702; 582685,
2381865; 582566, 2382005; 582651, 2382112; 583122, 2382432; 582768,
2382529; 582445, 2382889; 581998, 2383075; 581881, 2383019; 581546,
2383276; 581387, 2383071; 581221, 2383069; 581023, 2383019; 580811,
2382809; 580192, 2382557; 580070, 2382662; 579894, 2382772; 580060,
2383144; 580151, 2383425; 580526, 2383690; 580750, 2383802; 581314,
2383901; 581353, 2383719; 587168, 2382252; 586876, 2381574; 587645,
2381564; 587539, 2382159; 590187, 2381495; 590131, 2381324; 590955,
2381123; 591864, 2379621; 591408, 2379439; 591501, 2379125; 591510,
2378867; 591393, 2378631; 591229, 2378138; 591294, 2377905; 590979,
2377773; 590984, 2377387; 590770, 2377109; 590760, 2377063; 590999,
2376896; 590945, 2376772; 591176, 2376297; 591268, 2376320; 591426,
2376305; 591624, 2376158; 591620, 2375793; 591334, 2375340; 590950,
2375570; 590580, 2375400; 589956, 2375632; 589799, 2375555; 589539,
2375014; 589285, 2375190; 588919, 2375824; 588465, 2375750.
(ii) Map of Unit 1 follows.

[[Page 63778]]

[GRAPHIC]
[TIFF OMITTED] TR10DE01.003

(6) Unit 2 ( 2,422 ha; 5,985 ac)
(i) Unit 2 consists of 78 boundary points with the following
coordinates in UTM Zone 4 with the units in meters using North American
Datum of 1983 (NAD83): 592645, 2367498; 591970, 2368628; 592530,
2369066; 592575, 2369415; 593190, 2369759; 593231, 2369971; 592864,
2370362; 593156, 2370385; 593368, 2370513; 593249, 2370991; 592348,
2370899; 592469, 2371381; 592374, 2371861; 592582, 2372284; 592295,
2372774; 592100, 2373836; 591816, 2374384; 592053, 2374764; 592045,
2375115; 592504, 2375529; 593245, 2375497; 594056, 2374659; 594299,
2374644; 594081, 2374253; 593970, 2373860; 594207, 2373793; 594437,
2374070; 594578, 2374412; 594867, 2374406; 594965, 2374331; 594978,
2374067; 595140, 2374463; 595431, 2374602; 595604, 2374352; 595772,
2374351; 595782, 2374020; 596005, 2373471; 595754, 2373256; 595960,
2372960; 595678, 2372709; 595531, 2372434; 595485, 2371908; 595272,
2371337; 595489, 2370340; 595296, 2369703; 595561, 2369694; 595565,
2369178; 595390, 2368213; 595117, 2368245; 594830, 2366778; 594015,
2366560; 593884, 2366525; 593756, 2366491; 593635, 2366570; 593574,
2366695; 593629, 2366713; 593594, 2366869; 593651, 2366917; 593639,
2367019; 593682, 2367104; 593591, 2367228; 593472, 2367265; 593388,
2367176; 593425, 2367112; 593379, 2367045; 593395, 2367010; 593413,
2366861; 593391, 2366809; 593307, 2366826; 593203, 2366792; 593207,
2366684; 593121, 2366632; 593137, 2366521; 593030, 2366348; 592668,
2366451; 592945, 2366998; 592852, 2367332; 592645, 2367498.
(ii) Map of Unit 2 follows.

[[Page 63779]]

[GRAPHIC]
[TIFF OMITTED] TR10DE01.004

(7) Unit 3 ( 14,801 ha; 36,573 ac)
(i) Unit 3 consists of 108 boundary points with the following
coordinates in UTM Zone 4 with the units in meters using North American
Datum of 1983 (NAD83): 615481, 2366443; 614313, 2366190; 614232,
2366761; 613262, 2366836; 612845, 2367394; 612829, 2367639; 612488,
2368140; 611561, 2368027; 611448, 2368566; 611117, 2369088; 610523,
2369387; 610693, 2369643; 610226, 2370083; 611040, 2370565; 609681,
2371985; 609025, 2371951; 609034, 2373100; 608391, 2373401; 608469,
2373609; 608065, 2373567; 607941, 2373859; 608199, 2373978; 608109,
2374925; 607637, 2375635; 607869, 2375817; 607456, 2375780; 607136,
2375598; 607046, 2375977; 607565, 2376766; 606428, 2378568; 605381,
2378725; 606026, 2379972; 604900, 2380551; 605708, 2381032; 607698,
2381439; 609468, 2381214; 610319, 2381573; 611728, 2381425; 611797,
2380904; 612201, 2380506; 613364, 2381362; 615459, 2380980; 616152,
2380161; 616780, 2378903; 616513, 2378013; 616873, 2376632; 616699,
2375737; 617180, 2375933; 617356, 2375158; 617664, 2375259; 617994,
2375029; 617757, 2373739; 618311, 2372859; 618082, 2372506; 618563,
2371385; 617894, 2370668; 618022, 2370181; 618247, 2370148; 618043,
2370014; 619043, 2369685; 618878, 2369509; 619381, 2369376; 619182,
2369040; 619525, 2368805; 619611, 2368922; 619747, 2368829; 619588,
2368664; 619928, 2368585; 619650, 2368496; 619614, 2368284; 620097,
2368401; 619967, 2368174; 620164, 2368022; 620005, 2367870; 620257,
2367795; 619954, 2367590; 620341, 2367572; 620055, 2367214; 621150,
2366779; 621549, 2366388; 621302, 2366064; 621511, 2365913; 621381,
2365424; 621553, 2365265; 621489, 2364827; 620880, 2364530; 620469,
2364040; 619115, 2363338; 617176, 2363590; 616868, 2363761; 616638,
2364642; 615913, 2365439; 615777, 2365575; 615420, 2365753; 615767,
2365918; 615684, 2366361; 616156, 2366495; 616990, 2367187; 617469,
2367398; 618312, 2367466; 619282, 2367250; 619336, 2367460; 618293,
2367672; 617426, 2367594; 616876, 2367352; 616189, 2366748; 615713,
2366555; 615481, 2366443.
(ii) Map of Unit 3 follows.

[[Page 63780]]

[GRAPHIC]
[TIFF OMITTED] TR10DE01.005

(8) Unit 4 (804 ha; 1,987 ac)
(i) Unit 4 consists of 35 boundary points with the following
coordinates in UTM Zone 4 with the units in meters using North American
Datum of 1983 (NAD83): 619449, 2361897; 619967, 2362184; 619999,
2362473; 620286, 2362404; 620537, 2362773; 621409, 2363520; 621660,
2363584; 622719, 2364191; 622901, 2364348; 623091, 2364242; 623209,
2363699; 623046, 2363507; 623201, 2363403; 623106, 2363264; 623391,
2363271; 623404, 2363073; 623634, 2363216; 623976, 2362864; 623238,
2362105; 621688, 2361633; 621467, 2361418; 621345, 2361518; 620954,
2360860; 620598, 2360514; 620700, 2360831; 620572, 2360908; 619869,
2360908; 619670, 2360852; 619064, 2360661; 618935, 2360886; 619170,
2361072; 619199, 2361402; 619163, 2361470; 618977, 2361595; 619449,
2361897.
(ii) Map of Unit 4 follows.

[[Page 63781]]

[GRAPHIC]
[TIFF OMITTED] TR10DE01.006

(9) Unit 5 ( 4,180 ha; 10,329 ac)
(i) Unit 5 consists of 78 boundary points with the following
coordinates in UTM Zone 4 with the units in meters using North American
Datum of 1983 (NAD83): 626915, 2356759; 626560, 2357502; 626675,
2357669; 626333, 2357906; 626359, 2358234; 626110, 2358313; 626031,
2357725; 625623, 2357254; 625538, 2357354; 625351, 2357186; 625091,
2357420; 625118, 2357617; 625085, 2358039; 624568, 2358236; 624821,
2358624; 624612, 2358850; 625059, 2359019; 625083, 2359182; 624571,
2359489; 624430, 2359798; 624013, 2359828; 623768, 2359261; 623004,
2359366; 622941, 2359584; 622499, 2359435; 621968, 2359088; 621864,
2359256; 621335, 2359722; 622127, 2360488; 621920, 2360603; 623746,
2361359; 625281, 2363179; 625896, 2363475; 626109, 2363219; 626146,
2363135; 626234, 2362910; 626392, 2362857; 626871, 2362399; 626986,
2361859; 627500, 2361686; 626946, 2361095; 627268, 2360638; 627548,
2360727; 627690, 2360077; 628361, 2360895; 628839, 2360922; 629079,
2360676; 629519, 2360722; 629341, 2360070; 630776, 2359069; 631754,
2358982; 632440, 2358108; 632959, 2357815; 633019, 2357425; 632769,
2356517; 632191, 2356385; 630620, 2355286; 630491, 2355266; 630104,
2355644; 630041, 2355624; 629732, 2355117; 629510, 2355214; 629279,
2356032; 629033, 2356130; 628836, 2356015; 628378, 2356236; 628317,
2355841; 628209, 2355703; 627673, 2354542; 627125, 2354591; 627125,
2355143; 627381, 2355990; 627200, 2356033; 626832, 2355846; 626399,
2355498; 626215, 2355823; 626806, 2356493; 626915, 2356759.
(ii) Map of Unit 5 follows.

[[Page 63782]]

[GRAPHIC]
[TIFF OMITTED] TR10DE01.007

Dated: November 20, 2001.
Joseph E. Doddridge,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 01-29475 Filed 12-7-01; 8:45 am]
BILLING CODE 4310-55-P

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